Quo Vadis? The Future of International Dispute Settlement through the Art of Law in the International Community

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Reading Professor O’Connell’s latest opus, The Art of Law in the International Community, one cannot help but see its (deliberate or unintended?) twinning with Hersch Lauterpacht’s The Function of Law in the International Community. O’Connell argues for a reimagination of modern international law through three propositions, which respond to and further engage Lauterpacht’s  limitations on the rule of law within the State, the specific character of international law and rule of law in international society, and the relationship between political disputes and the judicial function in international law – premises that are often interpretively and controversially blurred in today’s international system.

In the first third of the book, O’Connell argues as a first proposition that “a persuasive theory of international law for peace includes natural law, positive law, and process law components…Natural law explains why consent-based positive law binds, what the moral limits of positive rules are, and how the general principles needed to maintain fairness function.” (O’Connell, p. 297)  Lauterpacht himself looked to “the law of nature and the principles of natural justice forming part of international law…the first function of the legal organization of a community is the preservation of the peace.” (Lauterpacht, pp. 65 and 72)  The second third of O’Connell’s book argues, in essence, that “the core provision of the international legal regime of peace is the prohibition on the use of force.  It is a jus cogens, natural law norm, which is no empty label.  Jus cogens norms permit no derogation” (O’Connell, p. 298) – and thus develops strict scrutiny against any latent or open attempt to derogate from the norm. Lauterpacht also viewed the use of force restrictively only for the right of self-defence: ” The right of  self-defence is a general principle of law, and as such it is necessarily recognized to its full extent in international law. But it is not a right fundamentally different from the corresponding right possessed by individuals under municipal law. In both cases it is an absolute right, inasmuch as no law can disregard it; in both cases it is a relative right, inasmuch as it is recognized and regulated by law. It is recognized to the extent—but no more—that recourse to it is not in itself illegal. It is regulated to the extent that it is the business of the Courts to determine whether, how far, and for how long, there was a necessity to have recourse to it.” (Lauterpacht, pp. 187-188).  In the remaining third of her book, O’Connell examines “alternatives to violence.  It is through the legal process that disputes may be resolved effectively…[the] jus cogens status [of the prohibition on the use of force is linked to] the obligation to proactively seek to settle disputes risking or resulting in violence…The performance arts reveal that shifting metaphors of legal process from battle to performance could well capture the popular imagination and move the international community more fully towards Lauterpacht’s vision.” (O’Connell, pp. 302-303).  O’Connell’s third proposition dovetails with how Lauterpacht anticipated how international lawyers and international courts could engage with political resistance(s) to an international system that has international judicial mechanisms but not a unified international legislature: 

“…[given] the problem created for obligatory arbitration by the absence of an international legislature…the difficulty arising from this defect of international organization cannot be solved by the rejection of obligatory arbitration altogether (that is by aggravating one evil by the perpetuation of another of even graver and more anarchical consequences), but by a proper assessment of the factor of change in international relations and by the exploration of all means either actually operating or likely to act towards the removal of the dangers which result from the absence of an agency to amend existing law. Thus it has been pointed out that much of this amending process is actually and necessarily performed by international judges in the ordinary exercise of their judicial function…It is a clear duty of international lawyers to explore these avenues in detail and to examine their possibilities. It is not permissible to reject an institution indispensable to the life of a community under the reign of law merely because its application may, in view of the deficient organization of the international society, be fraught with danger. The obvious duty of the lawyer is, first, to weigh the consequences of the repudiation of obligatory submission to international tribunals against the contingencies of a remoter nature arising out of the absence of an international legislature; his next duty is to provide for these contingencies by propounding and examining critically both the existing legal remedies and any constructive proposals calculated to reduce to a minimum the dangers and inconveniences resulting from the absence of an effective international legislature.” (Lauterpacht, pp. 352-353. Italics added.)

Other reviewers in this book discussion have aptly focused on the first two of Professor O’Connell’s propositions.  My review focuses on the third: particularly how O’Connell proposes the transformative capacity of aesthetic philosophy – and the performative metaphor of theater – to reorient disputing States away from zero-sum, realist, interest-driven frameworks and conceptions of the international legal process in international adjudication.   This powerful proposal takes us straight to the core of pacifist role that Lauterpacht saw for international lawyers of the future UN Charter-based system, but which has been occluded since with the rise of international lawyers as a global professional elite, yet devoid of any universal code of professional responsibility.

Reframing Dispute Settlement through Moral Judgment

O’Connell illuminates another motivator and driver for international dispute settlement, well beyond Hedley Bull-type conceptions of strategic self-interest of States in security and peace playing out within fluctuating balances of power in an anarchic society of states: “the conviction of doing the right thing based on reasons that attract without appealing to self-interest...dispute resolution, however, has as much or more in common with the performance arts, especially theatre, than a sports competition or war. Like legal process, theatre involves performance, participation, and language.”. (O’Connell, p. 264).  She opines that Lauterpacht’s vision could not be reached without “the recreation of enthusiasm for courts and tribunals of general jurisdiction…[enthusiasm for international courts could be renewed]…when the prestige of participating outweighs the reasons for resisting.” (p. 265).

I am not altogether sure that there is that much disinterest in courts of general jurisdiction, when one considers the proliferation of courts and tribunals (and corresponding critiques against the fragmentation of international law amid the multiplicity of adjudicative bodies) and the corresponding critiques against the quality or impartiality of international adjudication by certain courts and arbitral tribunals.  Depending on one’s historical lens, one might say the opposite: there may well be increased resort in the last few years to the International Court of Justice by applicant States, even if the Court’s jurisdiction is immediately resisted by respondent States.  The Gambia v. Myanmar, Jadhav (India v. Pakistan), Certain Iranian Assets (Iran v. United States), Ukraine v. Russia, Marshall Islands v. India, Marshall Islands v. United Kingdomare just a few contentious cases in recent history where respondent States vigorously resisted the Court’s jurisdiction (some victorious, others still pending).  There is, however, so much that is enriching in O’Connell’s call to have international dispute settlement return to its pacifist and moral moorings: that States should indeed submit disputes dispassionately to resolve these disputes under objective law interpreted and applied by the Court, because doing so ensures the wider peace for all. Lauterpacht would wholly agree, since he himself characterized the Court early on as “an agency for pacific settlement…the primary purpose [of the International Court of Justice] lies in its function as one of the instruments for securing peace insofar as this aim can be achieved through law.” [Hersch Lauterpacht, The Development of International Law by the International Court, Cambridge, 1982 reprint, at p. 3]

The question, however, is how to get States (or decision-makers within States) to yield convictions towards doing the right thing – such moral judgment premised on the right thing not just for one’s community but for peace for all humanity – without falling sway to self-interested (or decidedly selfish) impulses.  O’Connell aptly observes that in regard to China’s rise in the international system:

“…the question becomes whether it will take the ‘cafeteria’ approach to international law or an integral one.  China could follow the lead of other powers, picking what it likes of international law, failing to see it as an integrated system with interconnected rights, duties, and processes.  China’s military and economic strength may tempt its leaders toward just such an exceptionalist stance.  It already displays interest in leading at the WTO and with respect to climate but not on the law of the sea, human rights, or international dispute resolution.  China has shown willingness to comply with WTO decisions against it.  Yet, when the Philippines institute arbitral proceedings for Chinese violations of UNCLOS obligations, China refused to participate…claimed the tribunal had no jurisdiction…[thereafter] denounced the tribunal…China wants the advantage of UNCLOS membership without bearing the burdens…” (O’Connell, pp. 262-263).

While China’s refusal to implement the Philippines v. China arbitral award is but one example of State recalcitrance against international adjudication, O’Connell rightly argues that a ‘pro-participation ethos of international law’ would justify recourse to lawful countermeasures:

“Sometimes governments will complain about the ‘aggressive’ use of these mechanisms or otherwise infer that their use is coercive, illicit, or inappropriate…International law encourages resort to the peaceful mechanisms.  The coercive means in international law are the use of force and countermeasures…As for countermeasures, international law permits a state to violate a rule benefiting another state if that state has first violated a duty owed to the state taking the measure.  If a state refuses to comply with an arbitral award in favour of another state, for example, the state seeking compliance may refuse to fulfill a duty of its own to the defaulting state.  The rules governing countermeasures are strict, requiring a request for compliance, respect for the principles of necessity and proportionality, and the exclusion of measures that violate human rights, diplomatic privileges, the environment, and of course, jus cogens norms.” (O’Connell, p. 269).

The challenge with O’Connell’s paradigm is getting authoritative decision-makers to see what IS the right thing, much less identifying the right thing when confronted with it, and thereafter choosing to do the right thing.  (So much of the entrenched politicization in international disputes, after all, is precisely due to States’ authoritative decision-makers thinking that they *are* doing the right thing, to the exclusion of anybody else’s assessment of what is right.) While the first third of O’Connell’s book referred to the need to draw upon the vitality of natural law (particularly in its Christian or religious moorings, cf. pp. 1-102) in international law for States making their assessments of what is “the right”, what is left unsaid in the book is how natural law would appeal or resonate for States that have historically not drawn upon this theory of law in its own legal system.  China is a classic example of this paradox.  While some scholars (see here, here, and here) have argued that natural law should instead be reframed or reconceptualized altogether from the standpoint of Chinese legal thought and legal traditions, China’s international law experts and jurists have tended to advocate for a consensualist (and at times, positivist or realist) approach to international law.  One wonders whether O’Connell’s proposal for an international law of peace largely drawing from natural law, positive law, and legal process would be amenable to rewriting according to State preferences on the content of natural law.  If the future of international dispute settlement depends to some degree on its recharacterization towards our moral principles (something I myself would be sympathetic to insofar as we would prioritize the implementation of human rights in international economic disputes in trade, investment, and finance), how does O’Connell’s opus teach us about bridging differences when such moral convictions clash in any international dispute?

International Lawyers as Artistic Mediators in the Theatre of Legal Process

O’Connell’s solution – refocusing on the aesthetic metaphor of theatre to elicit the human sense and experience of honor, responsibility, community, participation, and beauty for all who partake in the international legal process – should reinvigorate today’s international legal profession, especially in times of crises.  By seeking to reorient international legal process to our aesthetic sense, O’Connell recalls us back to “humanity’s social side, exposing the need for law that harmonizes life in society through the pursuit of justice…art attracts without the spectacle of actual violence or the nihilism of zero-sum outcomes.  It involves an aspect of human nature that does not involve striving for advantage.” (O’Connell, p. 290). With this reframing, those of us who participate in the international legal process “need not be designated ‘winners’ or ‘losers’ either…Transforming attitudes to favour international settlement of disputes might begin with new terminology.” (O’Connell, p. 291).  Thus, the narratives that we in the international legal profession draw about international disputes matter: the settlement of disputes should not involve beating chests in victory or stubbornly resisting defeat, but a submission by all States to the system of international justice to further the cause of peace for all of humanity.  Thus, international lawyers indeed have the responsibility to persuade “clients not only to enter into dispute resolution but to comply with outcomes…[it] is for accepting the judgment, not winning it…[that is] the honour that accompanies a demonstration of respect for the law.” (O’Connell, p. 293).  While she does not make it explicit in the book, O’Connell’s emphasis on international lawyers’ moral responsibilities as definitive for their professional responsibility would deepen current proposals (see here, here, and here) to establish global codes of conduct for international counsels.

Lauterpacht’s famous legal method is to undertake progressive interpretation to protect human rights and secure peace in the international system, and concomitantly he placed responsibility on international lawyers “to attempt to assess the place of so-called conflicts of interests in the scheme of pacific settlement of international disputes.  It is submitted that, while it is dangerous to under-estimate the true causes of international conflicts, it is undesirable to exaggerate them.” (Lauterpacht, p. 374).  His method may have inadvertently cast a heavily binary, zero-sum approach to international dispute settlement, due to the emphasis on State accountability and responsibility for the protection of human rights. O’Connell’s prescriptions appeal to our fundamental moral convictions – whether in the jus cogens prohibition on the use of force and the restrictive interpretation of its exceptions; natural law as among the sources of international law; or to the renewal of the international dispute resolution process away from polemics and polarization towards pacific dispute settlement –  to restrain, regulate, and govern the deliberations of State decision-makers, the international legal profession, international courts, and the international system.  In this way, O’Connell ultimately complements Lauterpacht’s method but also transcends it: that by looking to how we judge what is good, what is true, and what is beautiful in the profound introspections that form our moral convictions and legal judgments, we should indeed reach ever more closely to a genuine international law of peace.

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