Abstract
This article seeks to provide an alternative reading of Judge C.G. Weeramantry (1926–2017), former Judge and Vice-President of the International Court of Justice. Departing from the standard readings offered regarding his work, the article explores some of the deeper interests, prejudices and tensions that underlie Judge Weeramantry’s life and writings on international law as well as his less-explored writings on Sri Lanka.
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Notes
Weeramantry, Memoirs-Vol I, ibid, at 205.
Ibid. 206-209.
Ibid, 206.
Ibid., 96.
Ibid., 228.
CG Weeramantry, The Law of Contracts: A Comparative Study of the Roman-Dutch, English and Customary Law of Contract in Ceylon (2 Volumes) (HW Cave & Co, Colombo, 1967).
Weeramantry, Memoirs-Vol I, supra note 1, 351.
Ibid., 361-365.
Ibid., 382-392 (Chapter 20, titled ‘The 1971 Insurrection’).
Weeramantry, Memoirs-Vol III, supra note 1, 17-18.
Weeramantry, Memoirs-Vol II, supra note 1, 50.
Of the 15 seats in the ICJ, only 3 are meant for the Asians. Yet conventionally, one of them goes to China and a practice has developed of another seat going to Japan. This leaves only one seat for the rest of the Asian countries, a seat which becomes vacant every nine years. Here too, candidates from India and Pakistan have a greater likelihood of getting elected. Therefore, as Judge Weeramantry explains, the odds against a candidate from a small Asian country are great. Weeramantry, Memoirs-Vol III, supra note 1, 13-14.
Though deserving on merit, it is interesting to note how luck also seemed to have played a role. Initially, Sri Lanka had been politically committed to supporting the Pakistani candidate, nominated by the then Prime Minister Benazir Bhutto. This meant that the papers relating to Judge Weeramantry’s nomination were stuck on a desk of an official, with no prospect of further movement with the deadline for applications fast approaching. Yet, just ten days before the deadline closed, Bhutto was dismissed from office. This paved the way for Sri Lanka to field and support its own candidate at the election for the ICJ which was scheduled to be held in November 1990. See, Ibid, 32-34.
Judge Weeramantry writes: ‘When I was doing well at the bar and told him [Sumitta] how true his predictions had proved, I graphically remember his reply “This is nothing!” When I was appointed a Supreme Court Judge and made a similar observation his response was the same. So also, when I was appointed to a chair in Australia, his reply was on the same lines. So was his reply when the Deanship of the Law Faculty at Monash seemed a possibility. And I well remember some years before my appointment to the International Court, his telling me that something very outstanding would come my way before my 64th birthday but that he would not live to see it. Just as he observed, I was elected to the Court in November 1990, just a few days before by 64th birthday and Sumitta had died some time before that. How these things are possible one can only guess. All we can do is to record them and ponder over their implications.’ Weeramantry, Memoirs-Vol I, supra note 1, 208-209.
In 2001, he established the erstwhile Weeramantry International Centre for Peace Education and Research (WICPER), where I worked as a research assistant (in 2003-2005) while pursuing undergraduate law studies.
See for instance: CG Weeramantry, Justice Without Frontiers: Furthering Human Rights, Volume 1 (Kluwer, The Hague/London/Boston, 1987); CG Weeramantry, Justice Without Frontiers: Protecting Human Rights in the Age of Technology, Volume II (Kluwer, The Hague/London/Boston, 1999).
See for instance: CG Weeramantry, The Lords Prayer: Bridge to a Better World (Liguori/Triumph, Missouri, 1998); CG Weeramantry, Islamic Jurisprudence: An International Perspective (Sarvodaya, Ratmalana, 1998) (first published in 1988 by Macmillan, London and St. Martin’s Press, New York); CG Weeramantry, Some Buddhist Perspectives on International Law, in Boutros Boutros-Ghali, Amicorum Discipulorumque Liber, Peace, Development, Democracy – Volume I (Bruylant, Bruxelles, 1998) 775.
See, CG Weeramantry, Nauru: Environmental Damage under International Trusteeship (OUP, Melbourne, 1992); Marie-Claire Cordonier Segger and CG Weeramantry, Sustainable Justice: Reconciling Economic, Social and Environmental Law (Martinus Nijhoff, Leiden, 2005).
See generally, CG Weeramantry, An Invitation to the Law (Stamford Lake, Pannipitiya, 2009) [first published in 1980 by Butterworth’s, Melbourne]; CG Weeramantry, The Law in Crisis: Bridges of Understanding (Sarvodaya, Ratmalana, 2001) (first published in 1975 by Capemoss, London).
CG Weeramantry, Apartheid: The Closing Phases? (Lantana, Melbourne, 1980).
CG Weeramantry, Nuclear Weapons and Scientific Responsibility (Longwood Academic, New Hampshire, 1987).
CG Weeramantry, Xenotransplantation: The Ethical and Legal Concerns (WICPER, Colombo, 2007).
For a detailed examination, see, Antony Anghie and Garry Sturgess (eds) Legal Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry (Kluwer, The Hague/Boston/London, 1998). See also: Antony Anghie, C.G. Weeramantry at the International Court of Justice, 14 Leiden J Int L (2001) 829; Saul Mendlovitz and Merav Datan, Judge Weeramantry’s Grotian Quest, 7 Transnatl L & Contemporary Problems (1997) 401.
See generally, Anghie, Ibid.
See generally, Anghie and Sturgess (eds) supra note 24, at ix-xiii (Preface).
CG Weeramantry, Universalising International Law (Martinus Nijhoff, Leiden/Boston, 2004).
Ibid. xi.
Ibid. More broadly, by ‘universalising international law’, Judge Weeramantry also refers to the need to ensure, inter alia, that international law is made more effective and relevant to the general public, as well as the need to promote greater cross-fertilization between domestic and international law/lawyers. Ibid, xi-xii.
Ibid; see especially, Chapter 1 titled ‘Cultural and Ideological Pluralism in Public International Law’ (at 1-31).
Ibid, 1.
Ibid.
Ibid, 2.
Ibid. See generally, Chapter 3 titled ‘International Lawyers: A Vision for the New Century’ (at 75-102).
Ibid, 185. See generally, Chapter 7 titled ‘Widening the Conceptual Framework’ (at 185-213).
Ibid. See, Chapter 14 titled ‘International Law as an Instrument of Peace’ at 408-426.
Ibid, 30. In this regard, see generally, Part B of the book titled Sources of International Law (at 215-323).
Ibid, 30.
Weeramantry, Memoirs-Vol III, supra note 1,175.
See generally, supra notes 17, 18 and 20 above.
See, ‘Separate Opinion of Vice-President Weeramantry’, in, Gabcikova-Nagymaros Project (Hungary/Slovakia), Judgment, [1997] ICJ Rep7 <http://www.icj-cij.org/docket/files/92/7383.pdf>.
See, Dissenting Opinion of Judge Weeramantry in, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep226 <http://www.icj-cij.org/docket/files/95/7521.pdf>. For an analysis of this Dissenting Opinion, see, Siddharth Mallavarapu, Banning the Bomb: The Politics of Norm Creation (Pearson Education, Delhi, 2007), especially, chapter 4 titled ‘The Dissent of Judge Weeramantry’. Mendlovitz and Datan, supra note 24.
Weeramantry, Memoirs-Vol III, supra note 1, 247.
See, CG Weeramantry, Equality and Freedom: Some Third World Perspectives (Hansa Publishers, Colombo, 1976).
Anghie and Sturgess (eds) supra note 24, x.
Weeramantry, Memoirs-Vol III, supra note 1, 253.
See generally the works at supra note 18. For a more recent work, CG Weeramantry, Tread Lightly on the Earth: Religion, the Environment and the Human Future (Stamford Lake, Pannipitiya, 2009).
Weeramantry, Memoirs-Vol I, supra note 1, 3.
Ibid, 25.
Ibid, 75.
Ibid, 28.
Ibid, 48.
Ibid, 77.
Anghie, supra note 24, 830.
Weeramantry, Memoirs-Vol III, supra note 1, 18.
This sense of mission is quite strongly present. He writes elsewhere: ‘[T]he jurisprudence of the Court was heavily Eurocentric and monocultural when I joined its ranks. I felt that this needed to be corrected and that if international law was to have universal authority, it must be truly universal and representative of global rather than regional traditions.’ Ibid. 173.
Ibid, 248.
Ibid, 260-261.
Ibid, 217.
Weeramantry, Memoirs-Vol I, supra note 1, 432.
This is even reflected in the title of one of his books: CG Weeramantry, Armageddon or Brave New World? Reflections on the Hostilities in Iraq, 2nd edn (Sarvodaya, Ratmalana, 2005).
Weeramantry, Memoirs-Vol II, supra note 1,156.
Weeramantry, supra note 27, 75-76.
Weeramantry, Memoirs-Vol I, supra note 1, 134.
Ibid, 135.
Ibid, 135.
See, for instance, his Separate Opinion in the Hungary v Slovakia case, supra note 41. In this, he discussed and developed the concept of sustainable development, with detailed references to the ancient irrigation works of Sri Lanka. He explains in his memoirs though, that while he understood sustainable development as a concept which needed to balance the right to development with the need to preserve the rights of future generations, he saw ‘the Sri Lankan system as the example par excellence striking the balance between these competing claims.’ Weeramantry, Memoirs-Vol I, supra note 1, 148.
Some of the views expressed here were first articulated in a paper titled ‘Third World International Law Scholars as Political Actors: The Sri Lankan Paradox’ (unpublished), which was presented at the Third World Approaches to International Law (TWAIL) Conference held in February 2015 in Cairo, Egypt. More generally, though not attempted in the above mentioned paper or in the present article, Judge Weeramantry’s writings on Sri Lanka may call for a work similar to the very interesting study done on Hersch Lauterpacht. See, Eliav Lieblich & Yoram Shachar, Cosmopolitanism at a Crossroads: Hersch Lauterpacht and the Israeli Declaration of Independence, 84 British Yrbk Intl L (2014) 1.
CG Weeramantry, A Call for National Reawakening (Stamford Lake, Pannipitiya, 2005).
Ibid, 4-6.
Some of those strengths are: the great natural talent of people, an extremely fertile and beautiful country, an ancient history about which the people can be very proud, a rich multicultural society, an administrative and institutional system which was once considered best in the region, etc. Ibid, 8-14.
The weaknesses are: the inability to run institutions without factionalism, envy of the success of others, lack of respect for law and order, widespread corruption and lack of transparency in decision making, the tendency to cringe before superiors, etc. Ibid, 17-48.
See generally, Ibid, especially Chapter 5 (titled ‘Ensuring a Single, Sovereign Sri Lankan State’) 98-156.
Ibid, 105-116.
Ibid, 116-124.
Ibid, 124-134.
Ibid, 134-142. These attributes are, namely, complete authority and control over: foreign relations; territorial waters and shipping; international frontiers; foreign policy; all matters of national security; armed forces; international treaties; customs and import revenues; immigration; compliance with international standards and principles; cooperation with international institutions; judiciary; exchange and currency; airspace over the entire territory; and maintenance of transparency in human rights procedures and institutions.
Ibid, 6.
See, Weeramantry, Memoirs-Vol I, supra note 1, 45-47 (on the ‘all-pervasiveness of British influence’) and at 80-86 (on the negative and positive aspects of colonialism); and more generally, Weeramantry, supra note 44.
Tamil historians, intelligentsia and political leadership have often challenged the more dominant mainstream narrative of Sri Lankan history, especially by emphasizing that the Tamil people constitute a distinct nation inhabiting a traditional homeland in the North and East of Sri Lanka. Judge Weeramantry has generally avoided this debate. And on the very rare occasion he has engaged in it, he has argued against the Tamil nationalist narrative of history. See, CG Weeramantry, A Plea for National Unity and an Undivided Sri Lanka, in, T Duraisingam (ed) Politics and Life in Our Times, Volume II (T Duraisingam, Colombo, 2000) 1571-1574.
Weeramantry, Memoirs-Vol I, supra note 1, 23.
Ibid, 38.
See, Weeramantry, Memoirs-Vol III, supra note 1, especially Chapter 10 (titled ‘The Need for a One World Concept’) 245-275.
One may read this as a position which broadly and faintly echoes the views of leaders such as Sun Yat-sen who had maintained that cosmopolitanism cannot be divorced from nationalism. See, for instance, the views of Sun Yat-sen & T.G. Matsaryk; quoted in James Summers, Peoples and International Law, 2nd revised edn (Martinus Nijhoff, Leiden/Boston, 2014)13-14 (especially, fn 3 therein).
See, Weeramantry, supra note 20, 234-236. Also note, that by the 1970s he had believed that: ‘We are beyond the stage in history where the sovereign state can be the chief recipient of an individual’s loyalty. That concept is being replaced by force of circumstances, by the concept of responsibility towards humanity, a responsibility transcending all others.’ Weeramantry, supra note 44, 172-173.
See, Weeramantry, supra note 80, 1566-1571.
See for instance, the booklet, CG Weeramantry, A New Human Rights Dispensation for Sri Lanka: One of the Paths to the Solution of Communal Conflict (Australia, OSLONU, 1984).
Weeramantry, Memoirs-Vol II, supra note 1, 379.
See for instance the unpublished booklet, CG Weeramantry, Indo-Sri Lanka Relations: A Study of Present Problems in the Light of International Law (available with the author).
See, Chapter XVII A of the Constitution of Democratic Socialist Republic of Sri Lanka, <http://www.parliament.lk/files/pdf/constitution.pdf>
See generally: Weeramantry, supra note 69. The book does not specifically discuss the importance of retaining the ‘unitary’ status of the Sri Lankan State (as recognized in Article 2 of the Sri Lankan Constitution). However it is interesting to note that while chapter 5 is entitled ‘Ensuring a Single, Sovereign Sri Lanka’ (at 98), the table of contents refers to chapter 5 as ‘Ensuring a Unitary State’. Ibid xi.
Ibid, 144-145.
This was the distinction adopted by the Supreme Court when deciding the constitutionality of the 13th Amendment and the Provincial Council system in 1987. See the Supreme Court judgment: In Re the Thirteenth Amendment to the Constitution and the Provincial Councils Bill <http://www.lawnet.lk/docs/case_law/slr/HTML/1987SLR2V312.htm>
Interestingly, Judge Weeramantry’s critique of the provincial council system has been largely based on the argument that it amounted to a federal structure which thereby violated the unitary concept. For a rare but short quotation of Judge Weeramantry’s views from his writings of the 1980s, see, MSM Ayub, UNP and Federalism, <http://federalidea.com/focus/archives/192> Without further research into the original writings, it is difficult to pronounce more conclusively on Judge Weeramantry’s opinion on this issue.
See, Report of the OHCHR Investigation on Sri Lanka (16 September, 2015) <http://www.refworld.org/docid/55ffb1d04.html>
See, Groundviews, Interview with Justice CG Weeramantry, <http://groundviews.org/2010/03/12/interview-with-justice-c-g-weeramantry/>. Watch in particular mints.10.00-10.20, wherein Judge Weeramantry states that he does not want to comment on matters which have an international bearing.
An interesting example in this regard is his speech delivered in September 1983, extensive extracts of which have been reproduced in: Weeramantry, Memoirs-Vol II, supra note 1, at 391-402. This was just months after the infamous and brutal anti-Tamil riots of July 1983, whereby many Tamils were killed by Sinhala mobs. Yet, in this speech, there is hardly any serious or significant promotion of an accountability process or the need for swift prosecutions of the culprits.
His most direct intervention in this regard is the submission made before the Presidential Commission appointed by the former President of Sri Lanka, namely the Lessons Learned and Reconciliation Commission (LLRC). See, CG Weeramantry, Submissions of Judge CG Weeramantry to the Presidential Commission on Lessons Learnt and Reconciliation (29th November 2010) <http://www.onetext.org/admin/uploads/C%20G%20Weeramantry.pdf>.
It is perhaps not a well-known fact that during his years at Monash University, Judge Weeramantry was elected as the first President of the Overseas Sri Lanka Organisation for National Unity (OSLONU). Based in Melbourne, Australia, the OSLONU was primarily concerned with countering the propaganda of Tamil groups based overseas. See, Weeramantry, Memoirs-Vol II, supra note 1, 378-380. The OSLONU has been often viewed by its critics as an organization promoting a strongly Sinhala nationalist view of Sri Lankan politics and the ethnic conflict.
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Senaratne, K. Judge C.G. Weeramantry: an alternative reading. Indian Journal of International Law 56, 325–348 (2016). https://doi.org/10.1007/s40901-017-0053-8
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DOI: https://doi.org/10.1007/s40901-017-0053-8