LENT READING
MASTER CHRISTOPHER GREENWOOD
The Highways, Byways and Blind Alleys of International Law Master Christopher Greenwood, the Lent Reader, is a Judge of the Iran-United States Claims Tribunal. From 1977 to 2009 he taught international law and practised at the Bar, becoming a QC in 1999. He was a Judge of the International Court of Justice from 2009 to 2018. In October 2020 he will become Master of Magdalene College, Cambridge.
At the time that I was Called to the Bar, public international law scarcely seemed a promising field for practice. The clerk in my first chambers told me that it might bring in a case every four or five years but that I was better off focusing on personal injury. The International Court of Justice could scarcely have been described as busy in those years. In 1977-78, it had one case on its books which it did not have jurisdiction to hear. When I became a judge of the International Court 30 years later, my office contained a handsome bound set of the Court’s reports. The volume for 1977 contained only four pages; two pages in English and two pages in French on the same point. The inside cover of the volume stated rather sadly that ‘this volume contains neither an index nor a table of contents’. Underneath, someone had written in pencil ‘nor anything else!’
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attitude of the English courts to international law was transformed within a decade. What had seemed like a blind alley was soon revealed as a major highway and one in which Middle Templars played an important part. To understand why, however, we need to go back some 140 years to the American Civil War and a dispute between the British and American governments over a ship called the Alabama.
The picture in the English courts was hardly more promising. The famous decision in Buttes Gas and Oil v. Hammer led one despairing commentator to observe that the judgement left him with the sinking feeling that ’either international law does not really exist or, if it does, the English courts are incapable of finding out what it is or applying it’. Not long afterwards, a High Court judge, confronted with an argument about international law, quipped that ’English law is law, foreign law is fact, international law is fiction’.
The Alabama was built in Birkenhead in 1862 to the order of agents of the Confederate Government. Ostensibly a merchant ship, she was in fact a commerce raider and the United States Embassy in London demanded that the British Government respect the neutrality it had proclaimed at the outbreak of the war and prevent her from sailing. At this point, everything went wrong. The Foreign Office sought legal advice from the Queen’s Advocate, Sir John Harding QC. On the face of it, this was a sensible step, but unfortunately Harding had become insane and, by the time the Foreign Office had become aware of this problem, the Alabama had sailed. During the next two years she did immense damage to US shipping before she was sunk by a US warship nine miles off Cherbourg in a battle immortalised in a graphic painting by Manet (who had not actually witnessed the battle but painted it from press reports some months later).
In fact, the picture was much brighter than might have been thought. The International Court was on the eve of a remarkable renaissance and the
After the war, the US demanded compensation for what it considered a breach of the international law of neutrality. Some of these demands,
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for the ‘indirect damages’ said to have been caused by the Alabama and her sister ship, the Florida, came to vast sums and relations between the countries deteriorated to the point where there was talk of war. In the end the two governments opted for arbitration before a five-member tribunal, which included a former Swiss Head of State and eminent lawyers from Italy and Brazil. Britain nominated Sir Alexander Cockburn, Chief Justice of the Queen’s Bench and a Treasurer of Middle Temple. In some respects, he was an inspired choice as he was fluent in French and spoke passable German, Italian and Spanish. Unfortunately, he had one of the most unpleasant personalities in London and disliked foreigners. The US choice, Charles Francis Adams, was a far better one; though today he would certainly have been conflicted as he had been the US Ambassador in London during the Civil War and the author of the US demands regarding the Alabama. The arbitration was a spectacular success. The Tribunal found for the USA on the question of damages directly caused by the Alabama but for the UK on the indirect damages. The UK paid the award of $15.5 million at once and a dispute which might have poisoned relations for decades and even imperilled the co-operation which played such an important part in two world wars was brought to an end. Moreover, the example of how two States could settle a dispute through law inspired projects for a standing international court. That court was created in 1922 and again Middle Templars played an important part. The first British Judge of the Permanent Court of International Justice was Viscount Finlay, a former Lord Chancellor and Treasurer of the Inn. Despite being 79 at the time of his election, he managed to serve most of his nine-year term before dying in office.
