The Nightmare and the Noble Dream: An International Law Edition

Mary Ellen O’Connell’s sweepingly ambitious The Art of Law in the International Community is fueled by a sense of urgency: in a world facing a “‘piecemeal’ World War III’, (p. 15), international law, which was intended as a tool to save mankind from itself, is itself in a state of crisis. This crisis, however, is not one that has emerged from nowhere to take the world of international affairs by storm, but the result of a thousand paper cuts perpetrated by the unholy alliance of Realists and positivists. The Realist belief in military strength that recognizes few or no restraints except those that are voluntarily accepted by states, coupled with the positivist turn in international law, has resulted in an international law that is no longer fit for its primary purpose –– the attainment of peace and a corresponding prohibition on the use of force. O’Connell’s project is an effort to resurrect international law, in particular the international law relating to the prohibition on the use of force, by excavating and adapting its natural law origins for the modern age of doubt. She finds this secular counterpart to natural law in aesthetic philosophy, as a transcendent source of knowledge that is universally shared (p. 7). The book calls for renewed faith in international law as an instrument for peace by affirming its natural law heritage. This involves recognizing the natural law basis and character of the jus cogens prohibition on the use of force and affirming the precedence of effective and just processes for peaceful dispute settlement over militaristic means. 

It is difficult to resist the universalist and egalitarian spirit of the project, as is the passion with which it is invoked. And yet, one hesitates. Not because of the belief that war is preferable to peace, not due to naivete that the rhetoric of humanitarian intervention can serve as a cloak for imperialism, and not for lack of conviction in international law’s potential to contribute to human flourishing. Rather, my skepticism relates to the project’s dissection and reconstruction of the nature and sources of international law, and is in part promoted by a curiosity to hear more on where O’Connell’s own sympathies lie! 

First issue:  Nature of Claims of Positivism, Realism, Natural Law

The first––admittedly monumental––issue raised by the project is the nature of the claims made by adherents of positivism, Realism, and natural law theory, their relationship to each other and where they diverge or come together. O’Connell’s analysis of the poverty of the positivist conception of international law, and the extent to which it is capable of being a force for good, is based on a number of assumptions. The first is the harmony between positivism and Realist political theory, whereby presumptively selfish states want to be as free as possible in the conduct of their military affairs, where the only restraint they acknowledge on this conduct is coercion in the form of the superior military power of another state, and where states are entirely free to give and to withdraw their consent to be bound by any law regulating their conduct (pp. 4-5) In other words, the association between Realists and international law positivists results in a world where there are fewer and fewer limits on the use of force and the ones that persist are perpetually under threat. The antidote that O’Connell offers to this self-interested picture of state conduct is reviving the natural law basis of international law: natural law can explain both altruistic state compliance with the law, including in the absence of state consent, and also the superiority of certain norms compared to others. (p. 17).

One wonders, however, whether it is truly necessary or perhaps even accurate to draw a sharp distinction between the nightmare of an international law that is entirely at the mercy of the self-interested will of states which may be revoked at any moment, and the noble dream of an international law based on care, empathy, and universalism. To begin with, it is unclear whether O’Connell believes positivism to be incapable of explaining (to the same degree) each of the three elements––state altruism, state compliance with the law in the absence of consent, and norm hierarchy––on their own or if it only renders unsustainable the three elements, taken together as a whole. The former position does not seem plausible under at least some accounts of positivism. For instance, while classical positivist accounts of international law do indeed seem to suggest a necessary relationship between positivism and voluntarist theories of international law which privilege state will and consent, this is by no means a foregone conclusion. Indeed, for some proponents of positivism, the central tenet of positivism––that the existent and content of law depends on social facts––does not automatically entail commitment to a voluntarist approach. Much would depend on which social facts are considered relevant or determinative. [Mehrdad Payandeh, The Concept of International Law in the Jurisprudence of H.L.A. Hart, 21(4) European Journal of International Law 967, 970–971 (2011).]

Likewise, while Realism and positivism have been considered natural bedfellows, historically, pre-eminent Realists at the domestic level have at times seen themselves as having more in common with adherents of natural law. For instance, both Karl Llewellyn and Jerome Frank, espoused views and principles at different points in time that show considerable sympathy towards natural law values and that paint a much more complicated picture of the Realist and natural law “camps” and divides. [See Dan Priel & Charles Barzun, Legal Realism and Natural Law, in Law in Theory and History: New Essays on a Neglected Dialogue (Maksymilian del Mar & Michael Lobban eds., 2016).] In other words, it is difficult to make claims about what a “positivist” approach to international law may or may not stand for, and if it is able to work towards the good of others and contribute to human flourishing, without a clearer sense of the different strands of Realism, positivism, and natural law thinking and their respective influences on the modern day prohibition on the use of force. 

Second Issue: Character and Status of General Principles

The second issue raised by the project is the character and status of the “general principles” of equality, necessity, proportionality, and attribution, proposed by O’Connell. For O’Connell, like jus cogens, these are immutable principles that are “intrinsic to legal systems” which cannot, therefore, be created or altered through positive law processes (p. 55). O’Connell contrasts this category of inherent “general principles” rooted in natural law with the general principles that are based upon a comparison of domestic legal systems (p. 65). She also distinguishes these inherent general principles from peremptory norms on the basis that they “lack the substantive moral content of peremptory norms”. (p. 72). Rather, they are “secondary rules” that are “essential to the fair systems of law in positing, for example, equality of states or human beings before the law”. (p. 77). 

Notwithstanding these descriptors, the category of inherent general principles remains unhappily vague. It bears noting that quite a few of the scattered references in academic writing and case law to specific “general principles” such as pacta sunt servanda and necessity which are discussed by O’Connell do not in fact label these norms as “general principles” but as something else altogether––jus cogens, in the case of pacta sunt servanda (p. 77) and customary international law in the case of necessity and proportionality in the ICJ’s jurisprudence (p. 78). The main treaty which discusses “general principles” is the Statute of the ICJ, but O’Connell does not refer to Art. 38(1)(c) of the Statute as recognizing the concept of “inherent general principles”, presumably because of two reasons: non-derogability is not a feature of general principles in Art. 38(1)(c), and O’Connell might take Art. 38(1)(c) as instantiating a different category of general principles, namely, those that are derived from a comparison of national legal principles. We thus have little clarity on whence O’Connell’s category of inherent general principles originates from, if there is any evidence of its recognition outside a handful of academic articles, what types of principles qualify as general principles of this kind and why, what makes them non-derogable, and why must they be procedural in character. It is worth mentioning that there is in fact a significant strand of scholarship on general principles under Art. 38(1)(c) that in fact regards them as inherent and universal general principles that can be induced from the nature of mankind and human society (rather than deduced from positive law) and that this interpretation would not be entirely out of line with the drafting history of Art. 38(1)(c). This literature might form a promising line of enquiry for O’Connell in fleshing out the nature and content of her conception of inherent general principles. 

Third Issue: The Jus Cogens Narrative

Finally, the account of jus cogens put forward by O’Connell is (presumably self-consciously) in tension with the approach taken by the International Law Commission’s Special Rapporteur on jus cogens. Chief amongst these differences are the primacy accorded by the ILC to state and judicial practice in identifying the content of the concept of jus cogens, and its conclusion that in order for a principle to be considered a jus cogens norm, it must be accepted and recognized as such by the international community of states as a whole (Draft Conclusion 4). It is for this reason that the Commission identifies customary international law as the “most common basis” for jus cogens (Draft Conclusion 5). O’Connell explicitly rejects this position, arguing that while state practice might be an “indicator of a peremptory norm”, it is not an essential element of jus cogens (p. 75). Similarly, she argues that the kind of subjective attitude or belief that must be shown in order for a norm to constitute jus cogens is qualitatively different from the opinion juris requirement for customary international law  (p. 76). Thus, O’Connell would derive the existence of a jus cogens norm from theology and moral philosophy, regardless of state practice to the contrary (p. 76). Given this fundamental difference of opinion, it is surprising that O’Connell does not directly address the ILC’s stance on jus cogens.

Conclusion

There are a number of possible responses O’Connell may have to her project’s disconnect from the ongoing debate–– both within and outside the ILC––on the Commissions’ conclusions on peremptory norms of general international law. One could argue that O’Connell and the ILC are simply not engaged in the same enterprise. While the Special Rapporteur (and the ILC) have deliberately chosen to forgo any attempt at resolving the theoretical debates concerning the foundations of jus cogens, it is precisely this question that animates O’Connell’s work and analysis. The Commission’s adherence to the international and domestic practice on jus cogens at the expense of engaging with its theoretical foundations has been criticized for offering “more water than wine.” The Special Rapporteur’s thoughtful response to this charge has been that the ILC is not engaged in turning water into wine, but rather, in “purify[ing] the water, so that it may be potable.” Extending the same analogy, perhaps O’Connell would characterize her project as being less about the water and more about the wine. It is difficult, however, to see how this distinction could be sustained as a matter of practice. After all, wine could not exist in the absence of water.