[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Clizia Franceschini reviews Mary Ellen O’Connell’s book on The Art of Law in the International Community (Cambridge University Press, 2019).
–Clizia Franceschini, PhD Student, IMT School for Advanced Studies Lucca, Analysis and Management of Cultural Heritage. Email: clizia.franceschini@imtlucca.it
Mary Ellen O’Connell is the Robert and Marion Short Professor of Law and is Research Professor of International Dispute Resolution- Kroc Institute for International Peace Studies, University of Notre Dame. The Art of Law in the International Community represents an effort of returning to natural law through arts and aesthetic philosophy as tools that could motivate and improve compliance to jus cogens rules and participation in the legal process.
In her book, O’Connell returns to Sir Hersch Lauterpacht’s natural law theory as the starting point to explain that some peremptory norms have roots in natural law theory, e.g. the prohibition on the use of force.[1] For Lauterpacht, positive law and positive law theory are accepted, but within a more complete theoretical concept of law that included natural law and legal process. In his theory, all law consists of mostly positive law within a frame of natural law. For these reasons, the book is part of the Hersch Lauterpacht Memorial Lecture Series, based on the themes explored by the world’s most distinguished scholars and practitioners in the annual lectures given in Cambridge to commemorate the unique contribution to the development of international law of Lauterpacht.
Chapter 1, Revitalizing the Theory of International Law Compliance, opens with a detailed discussion of positive law and the need of natural law explanations of why law binds sovereign states, even when national institutions find a rule not in their national interest. Positivism, the theory that consent accounts for the mandatory nature of rules is a sufficient explanation for most substantive legal content. Positive law, though, does not explain what makes consent a binding element. More in details, there are few international courts and tribunals with a limited general compulsory jurisdiction, which Lauterpacht considered fundamental.[2] The author notices that the global popular movement that once promoted courts and legal mechanisms for dispute resolutions as a substitute to resorting to armed force, has all but progressively disappeared. This is the reason why the introductory chapter of the book challenges this approach by drawing on a revitalized natural law based on a secular justification for complying to peremptory norms of international law. Parallel to a divine command, the universal pleasure in the contemplation of beauty seems to be the entry point to promote law compliance as an act of altruism and humanitarianism for the interest in global peace. Furthermore, this approach would lead to a shift from a rule compliance based on the Realist approach to a compliance to peremptory norms based on the natural law approach.
Drawing on the explanations built on the initial chapter of the book, the author reflects upon the natural law theory and aesthetic philosophy to answer the challenge posed by legal advisers in major military states for law that permits greater resort to the use of force. The prohibition on the use of force is contained in the UN Charter at Article 2 (4). As witnessed by a long intellectual tradition of the prohibition on the use of force, the latter seems to be a principle of extra-positive law, codified in a positive law form. One of the main goals is to recover the connection between jus cogens and natural law, which has almost gone lost. According to the author, the main tendency is to interpret peremptory norms, such as the prohibition on the use of force, in the light of positive law. The prohibition on the use of force, though, does not operate according to positive law theory. The case studies examined are used to retrace the path of incorporation of natural law principles into positive law acts, thus finding that the superior status of these rules is historically derived from morality. More interestingly, the most important moral principles of international law are found among the jus cogens norms, where exceptions to the prohibition on the use of force are allowed only in case of the UN Security Council’s authorization on the use of force and self-defence.[3]
Chapter 3 and Chapter 4 explore the two components, the UN Security Council’s right to authorize the use of force and self-defence, for long identified as exceptions to the prohibition on the use of force. On the one side, the author remarks the role of the UN Security Council as the Institution in charge of rebuilding commitment to non-violence. Most importantly, the Security Council can reject the Realist approach with its focus on militarism over legalism, thus scrupulously following the international law governing the use of force.
On the other side, the author stresses the link between the prohibition on the use of force and the limited exception of self-defence. Relaxing the limits of the exception of self-defence have led to advance the interests of particular states from the perspective of a Realist vision of international law. Instead, the author believes that it is time to renew the compliance to the jus cogens rule (Article 2 (4) of the UN Charter), except in case of authentic self-defence.[4]
Following the same line of reasoning found in the previous sections of the book, the prohibition on the use of force in case of armed force used by non-state actors (internal armed conflict, secession and rebellion) is deeply contextualized. Throughout the analysis, the author wants to challenge the persistent view of those non-state actors who have taken up arms within the state to fight for various causes. Indeed, under the jus cogens prohibition on the use of force, the boundaries fixed by the strict necessity of self-defence and the authorization of the Security Council should not be relaxed.[5]
The concluding part of the book, Revitalizing the Process of International Dispute, wants to offer a new conclusive vision in considering the aesthetic philosophy approach as a tool to revitalize both the principles of dispute resolution and the traditional idea related to the use of force in the global scenario. According to the author, aesthetic philosophy, the arts themselves, including music, literature and the theatre (performing arts) are deemed to be an innovative approach for renewing and revitalizing the interest in the international legal process and international participation. Law and the arts are interconnected under several perspectives, although deeply unexplored as tools of mutual innovation.[6]
In this perspective, what emerges from the book is that the aesthetic philosophy of peace through international law implies a return to traditional peace-keeping, as a lawful and more successful tool to avoid the use of force in the resolution of international disputes. This position seems to be the real innovation presented by The Art of Law in the International Community. The rehearsal of “new” values based on natural law theory is particularly original with respect to the already existing literature in the field, thus revealing a real potential for innovation. It is the case to notice that so far, militaristic ideologies, including Realism, have driven to an intensive research and global policy toward the use of military power. In this perspective, the book wants to reverse this logic: the author is not presenting new rules of conduct in case of armed conflict, nor promoting new interpretations to allow derogations to the prohibition on the use of force. Rather, the focused effort to reach global peace in a revitalized international law framework is worthy of appreciation and trust. A reversal of such a way of thinking requires also a change on the values that have so far attracted the community of international actors: if war fascinates, so does art. The revitalization of international law through art performance and aesthetic philosophy is still underestimated, but potentially powerful in the light of the main goal for the humankind, and for the creation of a community based on peaceful and shared cultural values.
Suggested Citation: Clizia Franceschini, Review of Mary Ellen O’Connell’s “The Art of Law in the International Community”, Int’l J. Const. L. Blog, Apr. 7, 2020, at: http://www.iconnectblog.com/2020/04/book-review:-clizia-franceschini-on-mary-ellen-o’connell’s-“the-art-of-law-in-the-international-community”
[1] Sir Hersch Lauterpacht was one of the leading international lawyers of the twentieth century. His writing and professional activities, including as a judge, presaged the foundations of today’s international legal order. He spoke up, well before coming fashionable, for the human rights of all, the need for accountability by reference to new international crimes and an effective system of international courts.
[2] Sir Hersch Lauterpacht, The Function of Law in the International Community, Oxford: Oxford University Press, 1933, (n. 4), 437-8. Sir Hersch Lauterpacht, The Grotian Tradition in International Law, British Yearbook of International Law, 23 (1946), 1-53.
[3] A. J. Bacevich, The Limits of Power: The End of American Exceptionalism, New York: Henry Holt & Co, 2008. L. N. Sadat, Seeking Accountability for the Unlawful Use of Force, New York: Cambridge University Press, 2018, 548-77. S. J. Saphiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World, New York: Simon and Schuster, 2017, 417-18. A. Cassese (ed.), The Current Regulation of the Use of Force, Dordrecht: Martinus Nijhoff, 1986. C. Henderson, The Use of Force and International Law, Cambridge: Cambridge University Press, 2018.
[4] See UN Charter, Chapter VI. M. E. O’Connell, “Peace Through Law and the Security Council: Modelling Law Compliance”, in J. Farrall and H. Charlesworth (eds.), Strengthening the Rule of Law Through the UN Security Council, New York: Routledge, 2016. D. Bowett, Self-Defence in International Law, New York: Praeger, 1958.
[5] O. Corten, “La rébellion et le droit international: le principe de neutralité en tension”, Collected Courses of the Hague Academy of International Law, Receuil des Cours 374, Leiden: Brill, 2015. J.A Hessbruegge, Human Rights and Personal Self-Defense in International Law, New York: Oxford University Press, 2017.
[6] M. Koskenniemi, The Fate of Public International Law: Between Technique and Politics, Modern Law Review, 70 (2007), 1-30 (30). M.E. O’Connell, The Power and Purpose of International Law, Insights from the Theory and Practice of Enforcement, New York, Oxford University Press, 2008.
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