The Art of International Law-Making: Musings on The Art of Law in the International Community

The new book of Mary-Ellen O’Connell, The Art of Law in the International Community, has a number of merits. One merit is to have placed extra-positive approaches to law-making back at the centre of the stage. A second merit is to consider their role to explain the rise of two pillars of contemporary international law, namely the legal regulation of the use of force and the rules (or more precisely the meta-rules) on jus cogens. The centre of gravity of this book lies precisely at the intersection between natural law, jus cogens and the ban of unilateral use of force: a fertile ground for legal speculation.

There is much food for thoughts in the various threads departing from this dangerous crossroad. I will go along what appears to me the main thread, namely the role of extra-positive elements in the formation and development of the notion and of jus cogens and of the legal regulation of the use of force.

From a methodological perspective, these two regimes do have a common element. Both emerged through their inclusion in conventional texts, respectively the UN Charter and the 1969 Vienna Convention. Albeit not supported by a consistent and coherent trend in States’ practice, they immediately were considered as part of general international law and even of the small group of rules which feature the new world order in the aftermath of world-war II. Comprehensively considered, these elements converge to create the impression that a certain dose of extra-positive factors contributed to the formation and the development of both legal regimes.

The classical narrative about the prohibition of the use of force is that the UN Charter has crystallized a long process of formation, dating back to the interwar era or even to a more remote past. However, the analysis of the preparatory works of the San Francisco conference shows that the delegates firmly believed that they were laying down a new legal regime and not so much drawing the conclusions of an almost settled process of formation. The same conviction was expressed by the ICJ a few years later, in Corfu (Corfu Channel case, Judgment of April 9th, 1949: I.C.J. Reports 1949, p. 4). In the last part of the judgement, it qualified “the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law”. The distinction between the pre-Charter and the post-Charter law could not be clearer.

Moreover, the rule prohibiting the use of force proved to be endowed with an exceptional capacity to resist inconsistent practice. In Nicaragua the ICJ held that conducts inconsistent with this rule, if accompanied with appeal to exception of justification, produces the paradoxical effect of enhancing rather than weaken its normativity (Military and Puramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment, I.C.J. Reports 1986, p. 14, para 185).

It seems, thus, that the coming into being of the prohibition, as well as its survival in spite of its multiple violations, testify the conviction of the international community that the existence of a prohibition, in spite of its relative ineffectiveness, is preferable to the return to the Hobbesian state of nature which featured the pre-Charter era.

The genesis of the notion of jus cogens followed an analogous path. This notion was enshrined in Articles 53 and 64 of the 1969 Vienna Convention in the absence of a consistent pattern of States’ practice and with the open hostility of powerful States (France and the US, among others) and of the prevailing scholarly  opinion.

Before the Vienna Convention, one could hardly find notable examples of the existence of a higher law. Faint traces of this idea emerge from the holding of the ICJ in Corfu (quoted above), that certain rules constitute the “essential foundations” of the new legal order. A few months after the conclusion of the Vienna conference, in Barcelona Traction (Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3), the ICJ referred to certain rights whose “importance” entailed that “all States can be held to have a legal interest in their protection”. The normative value of a right became thus the decisive element for the development of the doctrine of the obligations erga omnes.

One can hardly deduce from these sparse fragments the highly sophisticated legal regime enshrined in the 1969 Vienna Convention. In the same vein, it is difficult, after fifty years from its drafting, to provide examples of treaties declared void and null because of their inconsistency with a jus cogens rule. Yet, as showed by Mary-Ellen O’Connell’s book, the existence and the legal regime of jus cogens is conspicuously considered as part of international law to the point that its scope and function considerably expanded well outside the limited field of the law of treaties.

Consistently with the main claim of the book, I am persuaded that both, the emergence of the legal regulation of the use of force as well as the notion and the legal regime of jus cogens, cannot be explained merely on the basis of jus positum. Even less does positive law support the idea that that regulation, at least its core content of the general prohibition of the use of force by states, has acquired the status of jus cogens.

But, if this evolutionary leap cannot be explained on the basis of the classical process of law-making, what precisely prompted it?

The answer of Mary-Ellen O’Connell seems to be straightforward. Her point is that this spectacular change in direction of international law, toward the emergence of rules protecting collective interests of the world community, is due to natural law. Here, I should register a certain dissent. Although I believe that extra-positive reasons account for this change, I am not fully persuaded that this amounts to a new encounter, after half a Century, between international law and the tradition of natural law. I give two reasons for this skepticism: the first relates to the features of natural law; the second to those of positive law.

In spite of its alleged immutable character, natural law appears to change over time. In his memorial writing on “The Contribution of Alfred Verdross to the Theory of International Law” (6 EJIL, 1995, 33 ), Bruno Simma, after paying tribute to this great scholar, focused on the difference between the principles of jus cogens listed in an article of 1937 (“Forbidden Treaties in International Law”, 31 Am. J. Int’l L. 1937, 571) and those listed in later works. In particular, none of the principles listed in the works written after the entry into force of the Charter corresponded to one of the principles listed in 1937. This remark leads one to conclude that, in the conception of Verdross, jus cogens sensibly changed its contents in the new international order emerging from the ashes of world-was-II.

Let me indulge in a self-quotation: “in spite of its premise, this methodology (natural law) ended up defining jus cogens not in absolute and immutable terms, as the hearthly transposition of transcendent ethical virtues, but rather in historical and contingent terms” (“Peremptory Law-Making”, in  International Law. Making. Essays in honour of Jan Klabbers, R. Liivoja and J. Petman eds.,  London-New York, 2014, 261).

 Par contre, positive law, as referred to in the prevailing literature, is only imprecisely the product of a formalized procedure of law-making. It rather seems to be the product of countess social factors, among which, perhaps, the sense of justice, reasonableness, fairness and necessity of a rule which matches the needs of the international community in a given historical time.

In other words, the drafters of the Charter were aware that they were not codifying a previous practice but rather were writing a law for the emerging world order. On the same vein, the ILC members who put on the table the idea of jus cogens, the judges of the ICJ who formulated the idea of obligations erga omnes highlighting, perhaps erroneously, the importance of the rights involved; the delegates to the Vienna conference who voted in favour of Articles 53 and 64 VCLT, all were inspired by the same sentiment, namely that they were materialising the principles of the new international ethos for the new world.

All in all, what I gather from the reading of this book is that the inspirational drive of the quest for justice and fairness can transform international law, upon condition, however, to be vested in positive terms. I suspect that, while writing of natural law and on its contribution to contemporary international law, Mary-Ellen O’Connell had in mind something akin to this idea. And the book which came out of it represents a precious reference for whomever should attempt to navigate, even against the tide, these troubled waters.