Ethics and international law

Some judges feel less comfortable with the motto ‘the law is the law’ than soldiers feel with ‘orders are orders’, posits Dame Rosalyn Higgins in her Cleveringa lecture to be delivered on Thursday 26 November. This is the dilemma that formed the crux of Cleveringa's lecture 69 years ago.

Justice

A soldier's stops at the point when an order becomes a crime; for the judge, the law remains the law, even if it is unjust. Cleveringa is not the only person to have been confronted with this problem. German legal scholar Gustav Radbruch wrote a letter in 1945 to his students about the dilemma legal scholars faced with the relationship between the validity of the law on the one hand and the sense of justice on the other.  The 'formula of intolerability' that resulted from this letter - also referred to as Radbruch's formula - refers to the German courts of Law in the time of the Nazis.  Many judges left their home country rather than conforming to Nazi laws.

Philosophical issue

In international law - Dame Rosalyn's field of expertise - the same problem arises, but in a slightly different form.  In this area the concepts of 'lex late' or the law as it is, and 'lex feranda' or the law in the process of being made, have not yet been absolutely defined.  The 'law as it should be' falls under the concept of  'law that has not yet been completely made'.  Dame Rosalyn herself adopts the view that she does not see law as a set of rules, but as contrasting norms between which a choice has to be made, as in, for example, 'without the use of force' or 'self-protection'.  This is in any event a philosophical question that has little to do with the atrocious choice with which Cleveringa was faced.

Discrimination clause

By Dutch standards, discrimination is an outrage, according to Cleveringa in his lecture. This opinion is shared unequivocably by all those involved in international law, in the opinion of Dame Rosalyn. We all have an image of what constitutes discrimination. In international law, discrimination is formulated on the basis of race, colour, sex, language and political views. This is how it is included in all kinds of international treaties. The issue has expanded in recent times to include such aspects as ethnicity, national or social origin and sexual orientation. Dame Rosalyn gives an example of the discrimination clause in the International Treaty on Civil Law and Political Law (ICCPR), in which she and the state of the Netherlands were involved.

Non-discrimination principle

The treaty includes no specific statement about discrimination relating to social provisions and invalidity benefits. But the Human Rights Committee that operates under the auspices of the ICCPR, and of which Dame Rosalyn is a member, judged that under the treaty 'all forms of discrimination are forbidden.' The Dutch government could have chosen to ignore the stipulation, but - in spite of the major financial consequences - chose to accept the judgment and to take appropriate measures. This reaction was prompted by the importance that the Dutch state attaches to both international institutions and to the non-discrimination principle. Dame Rosalyn: ‘I have always hugely admired this.’

Dame Rosalyn Higgins

Dame Rosalyn Higgins was the first female judge to be appointed to the International Court of Justice in The Hague. She was President of the Court, the highest judicial body within the UN, from February 2006 to February 2009.  She has made a major and lasting contribution to the development of international law. Her publications, that cover more than 50 years, comprise many books and other scholarly contributions on such issues as legal theory, the law of the United Nations, international law relating to the use of violence, human rights, international humanitarian law, international economic law and the immunity of states and diplomats. She has also fulfilled numerous functions in the practice of international co-operation, including judge, mediator, member of the UN Commission on Human Rights.  A key theme of her work is supporting the rule of law in international relations.

Protest speech

The Cleveringa lecture is held annually to commemorate the protest speech delivered by Professor Rudolph Pabus Cleveringa on 26 November 1940. As dean of the Faculty of Law he spoke publicly of his abhorrence of the measures taken by the occupying forces to remove from the University all Jewish lecturers, including his colleague, E.M. Meijers, who should have been giving a lecture at that point in time. The Clevering chair and the Clevering lecture are of enormous significance to Leiden University; with this lecture, Professor Clevering honoured the University's motto ‘Praesidium libertatis’ (Bastion of Freedom) in the most impressive way possible. 

More about Cleveringa events

Commemoration of Professor Cleveringa's speech of protest

EVery year the Leiden University Fund organises Clevering events for aluni of Leiden University. The events are intended to commemorate the legacy of Professor Cleveringa.

Summary of the Clevering events in the Netherlands and internationally

(24 November 2009)