A woman of the world

July 14, 1995

John Davies meets Rosalyn Higgins, the first female judge appointed to the International Court of Justice in the Hague

In a corridor in the London School of Economics law department last month there was a notice inviting well-wishers to a farewell party for Rosalyn Higgins. But it was a premature goodbye, for the LSE could not officially announce that it was going to lose its professor of international law until two days ago.

On Wednesday the distinction of becoming the first female judge at the International Court of Justice in the Hague belonged to Higgins, who takes over from the previous British ICJ judge, Sir Robert Jennings.

It is an appointment that will be widely welcomed. Despite one or two murmurings, 58-year-old Higgins seems a popular choice. One fellow-lawyer describes her as "master of a very wide range of topics . . . (who) makes people think". Her LSE colleague Michael Zander sees her as a "strong personality who doesn't attract factions" and is "by no means a token woman"; while Oxford's Adam Roberts, professor of international relations, praises the "fine blend of idealism and common sense" that she will be bringing to the Hague.

The International Court post not only requires her to bid goodbye to academia; it also means, says Higgins, "everything else stops". As well as leaving the LSE and giving up her work as a QC, she will have to step down from the United Nations Committee on Human Rights, where she has been the United Kingdom's representative since 1983. This has required three one-month stints each year, in Geneva and New York, and "has been a large part of my life".

She is keen to talk about the pioneering work performed by the UN committee, which not only takes up individual cases but also conducts regular "audits" of UN member countries. "We call in each state in turn - the good, the bad and the indifferent. So at any session we can be examining one moment Iraq, the next moment Luxembourg. That's worked rather well . . . You're not just calling in the perceived violators."

Which means that no country has refused to appear before the committee. "We have seen, for example, Serbia and Croatia and Bosnia. We have simply written and informed them 'It's your turn to come' and they've come."

Even when states have poor human-rights records "they don't tell you it's nothing to do with you, mind your own business. They have a sense that they have to try and justify things, and that they are accountable to those who monitor international committees. And that is a start."

What about a country like China, though? Higgins pauses to compose a diplomatic answer. "A handful of states keep a distance from the international treaty system, and for the moment China would be among them."

Certainly, some international issues find her pessimistic. On the problems of former Yugoslavia she says: "I profoundly believe one cannot have mixed- mandate peacekeeping. UNPROFOR's (UN Protection Force) role was misguided from the start. One either has to have enforcement action or one has peacekeeping based on proper consent. This halfway house has been a disaster for all concerned." But this and other conflicts do not mean supranational institutions are failing, she believes.

"International law is no different from criminal law or the law of torts. That is, there will always be problems of compliance and non-compliance. There are breaches of contract every year, there are murders every year. Everywhere there is law not complied with, and a lot of law that is complied with. It is not a whole lot different with international law.

"What I do see is that states more and more perceive the critical importance of international law. It's heavily invoked, there's now a lot of litigation. It's apparent that international legal expertise is called for."

Higgins has displayed her own legal expertise before the International Court before. But a recent judgment by the ICJ showed no favouritism towards her; she appeared for Portugal against Australia in a case concerning the resources of East Timor, and lost. (The court refused to invalidate an Australian- Indonesian oil exploration treaty - a test of the legitimacy of Indonesia's annexation of the former Portuguese colony.) Her previous ICJ cases include taking on Hungary on behalf of Slovakia (when the litigation concerned a dam on the Danube) and representing Chad against Libya in a border dispute.

Higgins's connection with international law goes back more than four decades, to when she was an undergraduate at Girton College, Cambridge. "I was going to become a solicitor, and did a vacation job with a firm of solicitors," she recalls. "But it was apparent that wasn't what I wanted to do, and I had started enjoying my course in international law. I was spending time in the library reading all around that."

The result was that in 1958 she competed for, and won, an internship at the UN legal division in New York. "That really settled it for me. I found it all so exciting . . . It was at the stage when the UN was relatively new and there weren't that many people writing about it, so in a sense I got in on the ground floor."

Indeed, UN law was the subject of the doctoral thesis she began at Yale after leaving Cambridge with a first-class LLB degree. Back in Britain, she made her first acquaintance with the LSE as a junior fellow before joining the Royal Institute of International Affairs (Chatham House) in 1963 as an international law specialist. By then she had met and married an economist named Terence Higgins; now Sir Terence, he has been Conservative MP for Worthing since 1964 - he was financial secretary to the Treasury in the Heath government. Sir Terence is "the most tolerant husband in the world," she says. "He has put up with my comings and goings and strange work hours over the years with great calmness - and with positive encouragement."

Higgins stayed at Chatham House until 1974, when she returned to the LSE; then after stints as a visiting lecturer at Yale and Stanford, she became a professor at the University of Kent, three years later moving to the chair at LSE.

If there's one big idea behind her work, it is that law should be regarded as a "process" rather than a fixed system. "I do believe that law is not about the neutral application of impartial rules - it is a particular form of decision-making directed at certain values," she says. Law "is not to be regarded as something utterly separate from context and policy. Context and policy have to be a component element, but expressly articulated . . . And I have tried in my writing over the years to express that idea.

"I think that was regarded as rather radical in the early 1960s, but I think it's more accepted now. Then the idea was that there are rules, and you don't have to look at the consequences of their application. But really that is a tremendous oversimplification . . . When a judge says: 'Well, I'm simply applying the law,' that begs a huge number of questions."

But that is not to say she embraces a relativist view. As she says in her recent book, Problems and Process: International Law and How We Use It: "It is sometimes suggested that there can be no fully universal concept of human rights . . . (because of) the diverse cultures and political systems of the world." But this view, "advanced mostly by states and by liberal scholars anxious not to impose the western view of things on others", is, she says, "rarely advanced by the oppressed, who are only too anxious to benefit from perceived universal standards."

And it is here that Higgins is eloquent on the question of human rights: "I believe, profoundly, in the universality of the human spirit," she writes. "Individuals everywhere want the same essential things: to have sufficient food and shelter; to be able to speak freely; to practise their own religion or to abstain from religious belief; to feel that their person is not threatened by the state; to know that they will not be tortured, or detained without charge, and that, if charged, they will have a fair trial. I believe there is nothing in these aspirations that is dependent on culture, or religion, or stage of development. They are as keenly felt by the African tribesman as by the European city-dweller, by the inhabitant of a Latin American shanty-town as by the resident of a Manhattan apartment."

Of course, once she is a judge, Higgins will "inevitably" be less able outside the ICJ to express her opinion on the law, or the problems of the moment: "There won't be any question of going on the box, offering my views on which country is right on whatever is going on . . . I'm going to have to keep my feelings to myself on a whole range of things, and get accustomed to the discipline of sitting silent for much of the day," she smiles. "As someone said to me the other day, the thing you're going to find hardest is not talking."

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