Correspondence

International Affairs 43(1) 1967, pp. 212-3. Dr. Higgins’s response can be found at pp. 214-5.

To the Editor, International Affairs

Sir,

Permit me please, after my many years as your reader, to comment for the first time, and as concisely as the subject allows, on something in International Affairs. I mean the article by Dr. Rosalyn Higgins on the implications of the World Court Judgment of last July. For clarity’s sake I shall be blunt.

To me it is as if Dr. Higgins had, were it only inadvertently, let slip the opportunity to communicate as fully as she might have done her perception of those implications. And this not obviously for the purpose of safeguarding the reputation of the Court. Her show of anxiety for the Court’s prestige is respectable – but not readily to be squared with the orientation of her argument. She seems at one and the same time apprehensive lest confidence in the Court be diminished, and concerned that the public be led to share her own diminished confidence in the Court.

Dr. Higgins does, it is true, at one point concede that the Court ‘must, of course, (sic) give consideration solely (sic) to the law as it exists’ (p. 591). Yet her pages abound in extra-legal reasons why in this case it should not have done just that.

In believing that many Africans see the Judgment of July 18 ‘as a denial by white men of the use of the legal process to the coloured nations’ (p. 593), she could well be right. But is it really her idea that the Court should therefore have recoiled from what it saw as being its judicial duty? The Court, she complains, ‘completely sidesteps’ (p. 583) what she refers to as the repercussions of the point that the United Nations can ask only for an Advisory Opinion. Would she have preferred it to mis-state the law simply for the sake of avoiding those repercussions?

If a plaintiff is claiming what he cannot show to be his right, it is presumably at least in principle incumbent on a court to deny him what he asks for. But what if this, in the opinion of some – as opposed to that of the court, is what those who framed the relevant provisions can hardly have envisaged? In such case the court, Dr. Higgins seems to say, should go beyond the law – lest, by keeping within the law, it protect the defendant!

When complaining that the Applicants were denied a judgment from the Court, what Dr. Higgins evidently in strictness means is a judgment of an expected kind. For they were not of course denied a judgment. True, this was by what she ironically specifies as ‘seven votes to seven’ (p. 577). From a purely arithmetical point of view one might have thought that seven and one made eight – as conceivably they might without question have done had the casting vote been cast the other way!

Dr. Higgins has difficulty, she tells us, in seeing that the question of Ethiopia’s and Liberia’s legal right… was not a preliminary matter to be disposed of in the first phase of the proceedings. The point, however, surely is that the only such preliminary matters, to be so disposed of at that stage, had been the Respondent’s four objections – and that of these this question had not happened to be one.

The categories of states specified in the jurisdictional clause are, she writes,’presumably those who do have a legal interest in the carrying out of the Mandate’ (p. 580). Why ‘presumably’? The only categories actually specified in the clause are, on the one hand, the Mandatory and, on the other hand, the other members of the League.

Dr. Higgins blurs – as doubtless was not difficult – the distinction between ‘antecedent’ issues arising on the merits, and matters germane to ‘the respondent’s preliminary’ objections. In this she is effective but, I feel, a little unfair. The Court, she points out, had given no indication at all in 1962 that it proposed to carry certain points forward. Very true. But that was not, formally speaking, what the Court was, even in retrospect, to see itself as having done. Nor, technically speaking, what it had done.

The distinction drawn in the Judgment between the ‘conduct’ and the ‘special interests’ provisions of the Mandate (she also calls them ‘particular’, and ‘particular rights’, provisions) is, she remarks, ‘a concept hitherto unpropounded in international law’ (p. 583) – and not derivable from the mere wording of Article 7. And its implication she rightly sees as exceedingly important. But she does little to establish that this distinction, beyond incommoding her, is invalid. Disappointed litigants and their sympathisers are notoriously apt to find faulty the judicial reasoning that has promoted their discomfiture. And what they commonly will do is to expose the insufficiencies, as they see them, of the reasoning in question. In order persuasively to do this, it is, however, necessary at least to offer some sort of appreciation of that judicial reasoning, for the revealing of its suggested flaws. Yet this, in the present instance, Dr. Higgins scarcely attempts. Unequivocally she deplores the Court’s decision. But the reader otherwise unacquainted with that decision’s declared basis is merely told where he can find it.

Dr. Higgins is depreciatory of the Court, even inferring that it may have been swayed in its surprising judgment by emotional as opposed to juridical considerations. Piqued, it would seem, by the unwillingness of certain states to treat its Advisory Opinions as though they were decisions in contentious cases, the Court has now, so to say, taken vengeance on international society by evading its official responsibility as a court. This is puzzling, to say no more. And so, incidentally, in the footnote on page 574, is the reference to Advisory Opinions as ‘not strictly binding’. Why the adverb – which in later, comparable, contexts does not recur?

But most curious of all, given the importance of the issue, is Dr. Higgins’ bald and undocumented attribution to the General Assembly of ‘power’ (p. 583) to revoke the Mandate, when so much of what leads up to it has seemingly been pointing the other way.

Though colour prejudice is something that she would presumably disclaim, her estimate of their probable reactions to the judgment is far from flattering to the Africans. If international law is to continue to be of service to humanity, the up-and-coming new countries should permit themselves to accept it, even where it hampers their aspirations – and try to understand, and value, it for what it is. In this Dr. Higgins might have helped them had she chosen. I wish she had.

Yours faithfully,
C.A.W. MANNING

* * * * * * * * * *

International Affairs 43(2), 1967, pp. 433-5. Dr. Higgins’s reply is at pp. 435.

To the Editor, International Affairs

Sir,

If only because I would not wish to be more tedious or more tiresome than I need be, I will in general leave it to others to consider, in the light of her October article, how far Dr. Higgins’ in the main very temperately-worded rejection of my criticism is convincing. I am content for example, to mention here merely in passing the misquotings – in her point 1 of words of mine, and in her point 3 of words of her own. There is, moreover,much in her comments with which, since I had never questioned it, I cannot but cordially agree. But on several important issues I must beg you, sir, to permit me a further say.

I am, for instance, unable to concede that, because nations are bound by the law, they therefore are likewise bound by the Advisory Opinions of the International Court as to what it is. This, if I may say so, is surely elementary – and of obvious relevance for your readers’ appreciation of the role in terms no less of the Charter than of the Court’s own Statute – of the Court.

Again,with respect to Dr. Higgins’ still undocumented attribution to the General Assembly of ‘power’ to revoke the mandate – a position in which, as she claims, subsequent events have hardly proved her wrong –
I am unable to see this as equivalent to showing, – or even indeed to claiming, that they have proved her right. Even had the General Assembly affected to avail itself of such a power, this in itself could hardly have settled the legal point. As well might the SecurityCouncil purport to repeal the American Constitution. Whereas, in October, if I remember rightly, the General Assembly limited itself to a finding – if that is the proper word – that the mandate was no longer in existence.

As Dr. Higgins is kind enough to recall, I did indeed have the honour of appearing – in support, I may say, of self-determination for the African peoples – before the Court. And, as myself a lifelong Smutsite South African, I have indicated, in International Relations, October 1966, [sic, 1967] some of my own grounds for rather regretting that the main questions in dispute had had, in the circumstances, to be left undetermined. For it was after all the late Field Marshal’s philosophy of administration that was on trial at the Hague. But I wonder if there can have been no one else, even among persons free from the bias for which Dr. Higgins is careful in my case to allow, who suspected her, as I undeniably did, of having sympathies with the losing side.

Even so, it is not as if I had made anything special of this. My criticisms related to the substance of what she had written,irrespective of what her motives might have been.

Granting that she was, as she paradoxically puts it, a ‘distant bystander’ – my point, let me please recall,was simply that those who, whether disappointed or not with a judicial decision, found occasion to attack it in print, usually took more pains that [sic, than] Dr. Higgins seemed to me in this instance to have done to acquaint their readers with the reasoning, faulty though they found it, upon which the decision was stated to rest. If this comment was, on my part, unfair, I do of course apologise. But was it?

On one thing Dr. Higgins is correct. What I wrote – in her view unjustifiably –concerning the motivations of the judges was by no means a ‘résumé’ of her language. But neither did it purport to be. What I offered was not a résumé of her words, but my understanding, or, as she now assures me, my misunderstanding, of what they implied. I find not fully persuasive her alternative interpretation – ‘I merely suggested that the judges are sophisticated men who have an understandable anxiety for the prestige of the Court’. What puzzles me here is to see how anyone, whether sophisticated or not, but especially if presumably sophisticated, could reasonably be conceived of as imagining that by failing in the discharge of what commentators of Dr. Higgins’ standing might consider to have been their duty, they could in any sense be serving the prestige of theCourt.

I omitted, when writing the first time, to mention that Dr.Higgins’ article was, in my opinion, in many respects a very good one. I say it, if alas belatedly, n ow.

Yours faithfully,

C.A.W. MANNING