Peace and justice: George Troup discusses the role of the legal institutions of The Hague in international affairs.

• Author: Troup, George

To what extent do the legal institutions in The Hague contradict the proposition that 'might is right' in international affairs? The answer to this question may be sought in an examination, through a generalist political lens, of the origins and performance of the individual institutions. The two main aspects are dispute settlement and penal, including war crimes tribunals set up in response to specific situations in the former Yugoslavia and elsewhere. While aspirations such as ending impunity have not been achieved, there has been useful progress in extending the rule of law internationally, with a degree of acquiescence by major powers.

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My starting point is the classic statement of foreign policy realpolitik by Thucydides, the historian of the Peloponnesian War, 2500 years ago: 'In this world, questions of right and wrong arise only between equals in power. The strong do what they can, the weak suffer what they must.' This thought goes back even further; take Aesop's fable of the wolf and the lamb, memorably distilled in La Fontaine's version: the strong always have the best arguments. In other words, might is right.

Is size really everything? For the sake of small (weak) states we must hope not.

Let us fast-forward 2000 years to the early 17th century, when the Dutchman Idugo Grotius (Huig de Groot) laid the foundations of international law with his influential works on the law of war and peace and on the law of the sea. His concept of international society underpinned the Peace of Westphalia of 1648, which ended the Thirty Years' War (or, as the Dutch call it, the 80-year war of independence from Spain). This war was the bloodiest in Europe, and the nearest to total war, until the First World War. Westphalia established the principle of the equality of all states in international law and the right of national political self-determination. To this extent we can see it as positive for small states; but the accompanying concept of the absolute sovereignty of states is less conducive to international co-operation and the rule of law. The main instrument of statecraft under the so-called Westphalia system was the balance of power among hegemonic ambitions. The Westphalia system was, of course, devised by and for Europeans, but the geo-strategic realities of the next few centuries made it the de facto global norm.

The world wars of the 20th century exposed the limitations of the Westphalia system and galvanised the search for better institutions. The United Nations is the most obvious expression of the aspiration to find an alternative to the law of the jungle. An axiom of foreign policy for many countries, including New Zealand and also the Netherlands, is that a rules-based international order is in our interests (in the trade and economic arena as well). In other words, we identify with the weak in the dictum quoted at the beginning. This is an important reason why we have always been attracted to institutions like the United Nations with its one-country-one-vote in the General Assembly, and have staunchly opposed the veto power ever since the San Francisco Conference of 1945.

In this article I explore the extent to which the legal institutions in The Hague have been able to neutralise the power imbalance between the great and the small. I will be essentially drawing from material in the public domain, seen through the lens of my experience in The Hague working in various ways with the institutions. The opinions stated are personal, though my personal views generally coincide with New Zealand's official positions. My perspective is that of a generalist diplomat rather than a legal specialist, so my emphasis is on the political dimension.

Legal capital

Why The Hague? Several secretaries-general of the United Nations have recognised The Hague as the 'Legal Capital of the World'. The city's motto is Pax et Justitia--Peace and Justice. Fittingly, the mayor of the city during my time was a former foreign minister. How did The Hague come to assume this role?

At the end of the 19th century there was growing concern over the dangerous arms race between Britain and Germany. In 1899 Tsar Nicholas II convened the first-ever international peace conference, in The Hague. It seems that the city was chosen because it was accessible, neutral, and efficient; perhaps there were also echoes of Grotius, as well as the presence and influence of the great Dutch jurist Tobias Asser. Twenty-six sovereign states attended, mostly European. Included on the agenda was the voluntary arbitration of international disputes. This led to the Convention for the Pacific Settlement of International Disputes and the establishment of the Permanent Court of Arbitration (PCA). A second Hague peace conference was held in 1906, with wider participation but less groundbreaking results. Interestingly, the Tsar's response when his cousin Kaiser Wilhelm II appealed to him to help avert the escalation towards war in the summer of 1914 was to suggest reconvening the Hague conference.

The Scottish/American industrialist Andrew Carnegie, as a philanthropist with an interest in peace, was approached to fund a suitable building as the seat for the PCA. I understand that he was initially reluctant, objecting that his priority was libraries. The deal was clinched when it was suggested that the building could house the world's finest international legal library, and he wrote a cheque for US$1.5 million, which bought a lot in those days. A spectacular building resulted--the disneyesque Peace Palace, the most recognisable icon of the city of The Hague. It opened in 1913, just in time for the First World War. Many countries made contributions in kind to the building and its decoration. There were big celebrations in 2013 for the centenary, while I was there; New Zealand donated legal texts to the library to mark the occasion.

The Carnegie Foundation was established to manage the building. The Dutch government makes a substantial financial contribution, and the foundation is always chaired by an eminent Dutchman.

Carnegie was keen for the First World War peace treaty negotiations to be conducted in the Peace Palace. But United States President Woodrow Wilson had little time for Carnegie and wanted to recognise the role of France in the war, so the negotiations took place in Paris. Wilsons 14-point manifesto for peace was not much concerned with the settlement of disputes (other than the call for open diplomacy), but point 14 called for the establishment of a League of Nations. The Hague was canvassed as the seat for the league, but it seems that the Dutch tilt towards Germany during the war as well as disagreement over the fate of the Kaiser counted against it, and the nod went to Geneva.

The Hague did, however, secure the prize of hosting in the Peace Palace the Permanent Court of International Justice (PCIJ) that was established as part of the League of Nations. The PCA and the PCIJ, along with the library and the Hague Academy established around the same time, seem to have provided the critical mass and centre of excellence to drive continuing growth in the city's legal role.

Individual institutions

Turning to the individual institutions, I look at them through my 'small country' political lens, considering their history, governance and performance, and how they contribute to levelling the playing field among nations (in other words, how willing in practice are the big players to accept constraints on their power and sovereignty?). I also consider the nature of the institutions' relationship with the UN system, and, of course, point out some of the angles of particular interest to New Zealand.

I have divided the institutions into three categories--litigation, penal tribunals and non-court institutions.

Litigation: Although it is not the oldest, the International Court of Justice (popularly known as the World Court) is the best known of the institutions. It replaced the PCIJ after the Second World War. It is one of the six principal organs of the United Nations (along with the General Assembly, Security Council, Economic and Social Council, Trusteeship Council and Secretariat), which is a point of pride. It is the only Hague legal institution that is formally...