Judge Weeramantry's
Singular Contribution to International Law

by Peter Weiss

New York, January 25, 2000

Accumulating a long list of professional accomplishments is no great exploit for an academically minded lawyer. But moving the law forward, challenging its conventional wisdom rather than merely basking in its reflected glow, is a rare feat indeed. It is one which C.G. Weeramantry has performed often in his distinguished career.

Following a fifteen year term on the Supreme Court of Sri Lanka and two decades as a professor of international law at Monash University, Judge Weeramantry was elected in 1990 by the United Nation’s General Assembly to fill the Asian seat on the International Court of Justice in the Hague. There, his erudition no less than his integrity quickly earned him the respect and friendship of his colleagues, who elected him their Vice President in 1997, an honor rarely conferred on a first term member of the Court.

Some day soon, one hopes, an enterprising scholar will give the world of law a critical analysis of the judge's work, both on and off the bench. This brief article will focus on

what bids fair to become known as his crowning achievement to date, his brilliant, book length dissent in one of the most important cases in the history of the Court, its Advisory Opinion, requested by the General Assembly of the United Nations, on the Legality of the Threat or Use of Nuclear Weapons. Communicated to the Court at the end of 1994 by the Secretary-General , pursuant to a Resolution moved and adopted by a large majority of non-nuclear weapon states, the question put to the Court was "Is the threat or use of nuclear weapons in any circumstance permitted under international law?"

Following the submission of written representations to the Court by 35 states and the participation in oral hearings of 24 states, the largest number in its history, the Court, after lengthy deliberations, rendered its opinion on 6 July 1996. It held, by seven votes to seven, with the President casting the deciding vote, that the threat and use of nuclear weapons was generally illegal, but added that it could not decide whether or not this illegality applied "in an extreme circumstance of self-defense in which the very survival of a State would be at stake." Three judges, including Weeramantry, distanced themselves from this qualification, opting for illegality in all circumstances.

Judge Weeramantry justified his dissent in a magisterial 87 page opinion likely to become a classic of international law (and likely, in this writer’s view, to become the majority opinion on this issue in due course). Like the good lawyer he is, Judge Weeramantry examines every relevant technical and legal aspect in great detail, including the nature and effect of nuclear weapons, the applicable principles of humanitarian law and even the political dimensions of the question. But what shines through the dissent and gives it its transcendent importance is Weeramantry’s view of the law and its role in human society.

"The threat and use of nuclear weapons", he says in his opening paragraph, "contradicts the fundamental principle of the dignity and worth of the human person on which all law depends." Thus we are warned, ab initio, that what follows is not simply an examination of proclaimed law as applied to produced facts, but that, in dealing with a question as monumental as that of the survival of the human race, we had better have a view of what being human is all about and how that view relates to the law. That relationship, we are told a few paragraphs later, leads to the conclusion that since "there is no possibility whatsoever" of the threat and use of nuclear weapons being compatible with the principles of humanitarian law, they pose a threat not only to humanity but also to the integrity of international law itself.

Judge Weeramantry makes it perfectly clear that his opinion is based not on what the law ought to be but on what it is. At the same time, he vigorously defends the view that the law, if it is to be respected, must be superior to the forces arrayed against it: "Collisions with the colossal", he says, "have not deterred the law. … Once the Court determines what the law is, and ploughs its furrow in that direction, it cannot look over its shoulder at the immense global forces ranged on either side of the debate."

Another aspect of the dissent which emerges from Judge Weeramantry’s global perspective on the law, which runs through his previous decisions and writings, is his emphasis on placing the question before the Court within the context of the United Nations Charter. Not just nations, but "peoples" - mentioned in the Charter’s opening sentence, have a vital interest in the outcome of the case. Freedom from "the scourge of war", the dignity and worth of the human person, equal rights of nations large and small, the obligations arising from all sources of international law, the promotion of social progress and better standards of life in larger freedom and other principal themes running through the Charter, all have a bearing on the question to be decided; it cannot be resolved through the narrow, technical approach of some of his colleagues (all of whom, incidentally, wrote separate opinions in the case - another first testifying to its importance).

As one has come to expect from this multicultural scholar, reference is made to the sources of humanitarian law "in many civilizations - Chinese, Indian, Greek, Roman, Japanese, Islamic, modern European, among others." And due respect is paid to the role of civil society in bringing the case to the Court, with "a wave of global interest unparalleled in the history of this Court."

Toward the end of his - partial - dissent, Judge Weeramantry confesses that it comforts him that the legal conclusion he has reached, that the threat and use of nuclear weapons is absolutely prohibited by existing law, is also in accord with what he perceives to be the moralities of the matter and the interests of humanity. In his concluding paragraph he states "No issue could be fraught with deeper implications for the human future, and the pulse of the future beats strong in the body of international law."

Regrettably, the pulse of the future will beat less strong in the International Court of Justice, the highest tribunal in the world in matters of international law, with Judge Weeramantry’s departure from its bench. But the imprint he has left on the work of the Court, and the body - and soul - of international law will remain forever.

Peter Weiss

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