and Disagreements in International Law (with a View from Dworkin’s Legal Theory)




© Springer International Publishing Switzerland 2015
Laura Pineschi (ed.)General Principles of Law – The Role of the JudiciaryIus Gentium: Comparative Perspectives on Law and Justice4610.1007/978-3-319-19180-5_1


Principles and Disagreements in International Law (with a View from Dworkin’s Legal Theory)



Gianluigi Palombella1, 2  


(1)
Professor of Legal Theory, University of Parma, Parma, Italy

(2)
Scuola Superiore Sant’Anna, Pisa, Italy

 



 

Gianluigi Palombella



Abstract

Principles are part of international law as much as of other legal orders. Nonetheless, beyond principles referred to the functioning of international law, or the sector related discipline in discrete fields, those fundamental principles identifying the raison d’être, purpose and value of the legal international order, as a whole, remain much disputed, to say the least. In addressing such a problem, one that deeply affects interpretation and legal adjudication, this chapter acknowledges the limits and weakness of legal positivism in making sense of the inter- and supranational legal order(s). It appraises also the novel from the late Ronald Dworkin, concerning international law, and its consequence for interpretivism in the international environment, so different from State political communities and their “integrity”. Finally, some recent cases before international courts shall be considered, that expose difficulties stemming from traditional legal positivist strictures, and explain how judicial reasoning actually profits from asking further questions of principles. All the more so, if the issues at stake happen to be covered by two or more diverging legal regimes, that would, per se, lead to opposite outcomes.



1 Introduction


Despite their disputed nature, principles play a cardinal role in international law and in courts not only by filling legal gaps, but also as fundamental means for the interpretation of rules and the enhancement of legal reasoning.1

A canonical way to see principles in international law places them among the sources of law, as stated by Article 38 (1)(c) of the Statute of the International Court of Justice (ICJ). It is to be noted, however, that they can surface within more than one source. In the context of the ICJ, from Article 38 paragraph (1)(a), or (b), i.e. in the application of conventional or customary law by which they might be generated, beyond the separate provision singling out those principles “recognized among civilized nations”, in paragraph (1)(c).2 Famously, to the latter Hersch Lauterpacht3—Judge in the ICJ—referred as subsidiary general principles with the special, systemic, function of banning non liquet from the realm of (international) law.

Taking account of that background, the issue can be raised whether some set of principles, distinctively underpinning the international legal order, is capable of shaping its identity: as much as in any (State) legal systems, in their constitutional and primary law, principles frame the fundamental—ethical and political—choices to be pursued. They would function as gap-filling as well as interpretive resources supporting international law as a whole.

Accordingly, they should belong in the fundamental raison d’être of international law properly. Besides principles of law-functioning, referring to how international law can work, like pacta sunt servanda or, say, good faith, they would be closer to the question as to why it is valued and what are being its substantive purposes.

In truth, such a question is not different from the one most recently tackled by the late Ronald Dworkin, in a posthumous article,4 suggesting legal principles that, in his view, would frame international law, and help resolving “disagreements” in identifying positive international law norms, to be applied in adjudicative issues.

This chapter shall also consider whether an “interpretive” theory of law (renowned as one addressing the alleged weakness of strict legal positivism) can better suit the increasing appearance of principles and the current evolutionary trends of international law. To this regard, judicial cases, namely those originating from being a single issue under the reach of concurring, and often conflicting, legalities, shall be eventually examined. Among their many functions in international law, principles can help reconciling divergences stemming from the multiplicity of separate “regimes” (presently featuring in international law) that hardly would be solved by “formal” legal tools (lex specialis, lex posterior, etc.).5


2 What (and Whose) Principles?



2.1

“General principles of law recognised by civilised nations” (Article 38(1)(c)) are held to play the function of those clauses that in domestic systems refer to natural law (as in the Austrian Civil Code, Article 7) or the general principles of the legal order of the State (Italian Civil Code, preliminary Article 12). As a consequence, reference to them is mainly meant to face the issue of legal lacunae. It embraces the doctrine of a legal system’s completeness, one that in turn justifies, as mentioned above, (the feasibility of) the prohibition of non liquet 6: “‘the principle affirming the completeness of the legal order’ is to be seen as ‘the positive formulation of the prohibition of non liquet’”.7 And both should be seen as positive rules in customary law. 8

In truth, reference to principles belonging to civilised legal systems has been understood as evoking jus gentium, and it is contended upon, between at least two main theoretical strands. One assumes that these principles pertain to no particular system, being instead fundamental to all systems, and showing the essential unity of law, apparently as a matter of reason.9 The other derives its rationale from comparative legal approaches: enquiry throughout various national systems shows that the widest consensus supports some legal principles that accordingly become general international law, “independently of custom or treaties”.10

The resort of general principles, if seen through legal realist lenses, equates with an opening in favour of judicial discretion, if not judicial norm-creation. From some legal realist standpoint, general principles have been feared as the “Trojan horse” of natural law and morality into the interstices of positive norms.11 For Julius Stone (commenting on Lauterpacht):

Even if, for the sake of argument, we were to accept the “natural law” version most favorable to Judge Lauterpacht’s position, namely, that these principles represent a kind of inexhaustible storehouse of potential law, they still would not dispense the judge from making law-creative choices.12
Stone stressed the point, later become largely undisputed among legal scholars, that principles might be conflicting themselves, “and, indeed, often to the same principle by reason of its ambiguity, circuity or indeterminacy” can be traced diverse outcomes.13 Stone’s early criticism notwithstanding, legal systems are undoubtedly held to include principles, whose standards, far from being a sheer appeal to vague morality or natural law, are positive law essential in the construction of present legal orders.

As I see them, and as legal theory and jurisprudence have abundantly afforded consistent evidence in that regard, principles as normative standards, regardless of their treatment in different legal theories, hold a central place as positive law. Likewise, even those most structural “general principles of law”, play a fundamental function in every legal order: this is why Article 38 of the ICJ Statute upholds them as recognized among civilized nations, given their belonging to law functioning, as Lauterpacht would have them. Bin Cheng’s analysis has recorded the general principles of law through their use by international courts and tribunals and listed several such as self-preservation, good faith (and notably pacta sunt servanda, as well as malicious exercise of a right), varieties of sections on the principle of responsibility (fault, causality, individual responsibility, integral reparation, among them), most principles in judicial proceedings (from those inherent in jurisdiction to the various jura novit curia, audiatur et altera pars, nemo judex in causa propria, res judicata, etc.).14


2.2

Also due to the special features of the international legal system, the capacity and latitude of fixed rules stricto sensu, in a positivist view, appears at times limited: be it a matter of completeness of the system or otherwise, there are cases where international norms have led to no answer or otherwise stated, unsatisfactory outcomes. As Jan Klabbers has recalled:



[M]any have held that the bombing of Belgrade in 1999 was illegal, yet legitimate; the non-activity of the United Nations in Rwanda or Srebrenica, in the mid-1990s, was legally difficult to condemn, yet morally wrong.15
It is because of these and similar issues, that Klabbers is focusing on some “virtue ethics” that should be inherently essential for at least those that are entrusted to make the most of international law norms, and international judges among them.16 And not by chance, among the general principles of international law, good faith is in pride of place in measuring how should the key norm—pacta sunt servanda—be observed.17

However, aside from the prospect of a possible virtue ethics in international law, as a matter of fact those problems that stem from missing or conflicting norms—or that as such are perceived—seem to be increasingly apparent in international law context, all the more so due to the more demanding objectives of the “civilised nations” in the last sixty years. Thus, the full range of available international law principles is hardly overestimated and should better be felt as part of an ongoing constructive endeavor: it embraces certainly general principles of the law of civilized nations, principles of law-functioning, but also the principles belonging to specialized international rule-making (in, say, trade law, human rights law, environmental law, humanitarian law and the like).18 Nonetheless, it is worth supposing that adjudicative matters would better be viewed could one be drawing on principles bearing some substantive raison d’être of international law as a specific legal order.

To such principles might lead, for example, Anne Peters “compensatory constitutionalism” as encapsulating a general rationale of current international law. It conceives international law under a specific understanding which, through evidence of what she defines micro and macro constitutionalisation trends, enhances fundamental norms that would help manage transnational level issues. Conflict-solution requires a balancing of interests in the concrete case, in the absence of abstract hierarchy. According to Peters, the international lawyer should determine “the supremacy of international law over domestic constitutional law in a non formalist way”, that is, assessing the rank of the norms at stake “according to their substantial weight and significance”.19 However, fundamental norms would require some legitimacy, in the absence of a true international constitution, while State sovereignty and consent are no longer accepted as the sole source of legitimacy of international law.20

As I see it, the interplay between different regimes of law and separate orders in the global intercourses should be guided through mutually pondering their respective fundamental principles; as they function like hermeneutic sources of interpretation of rules, it is relevant how international law rationale and legitimacy are justified and through what substantive principles.


2.3

Such a question is of a type familiar to State legal orders and to constitutional reasoning in the last decades. It is plain fact that substantive principles, often enshrined in our Constitutions, define scope, values, and purpose of a legal order as a whole, by channelling rules’ interpretation on one side and, on the other, connecting its general coherence both to the logical consistency of its norms and to the evolving political-ethical pillars of its own community of people.

Although such a role of principles has become uncontested, it was famously made part of a self-standing theory of law, neither positivist nor naturalist, but interpretivist, by Ronald Dworkin: a theory that is centred explicitly upon the adjudicative side.21 Each legal order is to be referred to its own community, and principles belong to or constitute a bridge toward the integrity of its political morality. In truth, an interpretivist theory of law could accordingly be extended to international law, as much as to any legal orders properly meant, provided that a general rationale characterising the essential principles in the political morality of an international system of law is found.

However, in the tradition of legal positivism, from Austin to Hart, the very foundations and the maturity of international law as a legal order were never fully recognised,22 on the other hand, substantive principles, of an ultimate nature, sustaining international law are not easily (nor unanimously) presupposed, despite the number of supranational preambles, charters, conventions and quasi-universal convergence upon peace, security, human rights (let alone jus cogens and banning of war, torture, genocide, slavery). It is contentious if historical progress of international law has overcome the traditional core of a law treating bilateral interests under the dogma of States’ free will; if a super partes law,23 to be oriented by the interests of humanity has changed its nature24; if individuals have superseded States as the ultimate subjects for whose sake sovereignty itself appears now a conditional notion,25 and so forth.

If we imagined to adopt an interpretivist approach, by Dworkin’s lessons drawn on Western constitutional States, it would be arduous to argue through the key notion of integrity,26 extended to international law. That concept connects coherence of a legal order with the political morality of a well-defined social polity, while inter-state arena would still lack the unity of something like a universal community.

Nonetheless, in the article of his last days,27 eventually Dworkin tried to offer the missing template for international law, and extended his “interpretivist” theory of law to the domain of extra-State law, by providing some newly forged support.

He did so, by spelling what he believed the fundamental principles that specifically attain to international law, those that should justify the existence of the international legal order. Of course, even if found controversial, still they can set the scene for a long awaited focus upon the distinctive underpinning of international law, thereby making interpretive endeavour to begin as a principlebased exercise.


3 The Late Dworkin’s Theory of International Law



3.1

Dworkin rejects the positivist and Hartian idea28 according to which rules are valid only depending on the criteria of recognition spelled by a fundamental secondary rule of the legal system. He refutes on one side the conclusiveness of such a theory as policing system’s borders, on the other side, the social convention that is held to pinpoint specifically the birth and life of international law, that is, States’ consent.

The latter remains unpersuasive: it does not establish any priority among sources, gives no clue on whose consent is ultimately relevant, or when customary rules become peremptory; and what have States consented to remains often disputed (in many cases text cannot be decisive: e.g. Article 2(4) UN Charter on prohibition of the use of force). Even more fundamentally, for States to accept something as law, “they need some other standard to decide what they should regard as law”.29 That more basic principle, not the fact of consent, provides “the grounds of international law”: similarly, the obligating strength of promises, cannot be due to the mere fact of promising.30

Thus, being consent irredeemably flawed (and Dworkin is not alone in making that point),31 the “sociological” and descriptive answer according to which international law is law because it is believed law by “almost everyone”32 cannot be final.33

Briefly to resume, Dworkin states that it is in order to improve the legitimacy of their coercive strength visàvis their citizens, that States have a duty to accept a mitigation of their own power and to “accept feasible and shared constraints” based on international law.34 It is today adequate for the State to achieve its legitimacy only if its coercive power is “consistent with the dignity of citizens”, that is, a matter of substance not of pedigree; and similarly, even the international order makes up for the coercive system that States impose to their citizen: for the State, “it follows that the general obligation to try to improve its political legitimacy includes an obligation to try to improve the overall international system”35 (that means, so improving its own government legitimacy), and such an obligation includes cooperative duties, beyond a law of co-existence.36

The latter shall be all the more relevant in the future, if we think of those challenges to States self-referentiality stemming from climate change or other environmental interests common to all peoples.

However, of itself, such a principle of mitigation is insufficiently determinative as to different possible regimes of international law; accordingly Dworkin coins the principle of salience. It is a normative principle itself, and works in connection with the first. It establishes the duty prima facie to abide by codes and practices already agreed upon by a consistent number of States and populations. A duty that shall have an obvious “snowballing effect”.37 The moral obligation of all nations—for example, to treat UN law as law—flows from the combined sense of those two principles, and explains as well why even States’ Constitutions tend to include and protect more widespread rules considered as jus gentium or even peremptory jus cogens.


3.2

Dworkin does not embrace any cosmopolitan view. International law principles are traced back to the rationale of the relationship between State power and its citizens, not to a global hypothetical government or to universal justice. It is a second level order of States, and international organisations, to matter, not a universal community of individuals. As far as I can see, even the “political morality” of the international system can only enjoy a second level status, that is, the integrity of its values has a derivative status not a self-standing substantive content. And in fact mitigation applies to the system of sovereigns. Therefore, even one of the fundamental canons of Dworkin’s general philosophy, equal concern and respect 38 for each individuals, does not feature within the scope of international law immediately. Mitigation and salience refer to States’ system (or to powerful international organisations) premised on the general duty of States to protect the dignity of individuals. Because States shall have to respect citizens’ rights, their sovereignty shall not prevent other States’ intervention to stop genocide; mitigation shall ask States not to refuse cooperation in facing communal interest of humanity, be it concerning security, hunger, environmental protection. Mitigation is explained, in a nutshell, as a source of both negative and positive duties. Although Dworkin suggests, as “phantasy upon phantasy”, an international court having jurisdiction “over all the nations of the world”, such a thought-experiment comes with a clear statement about the domain of international law: a very distinct part of what “morality and decency require of States and other international bodies in their treatment of one another”.39 And again along these lines he asks which argument a hypothetical court should use to determine “the rights and obligations of States (and other international actors and organizations) that it would be appropriate for it to enforce coercively?”.40 So the question is defined by the borders of the Westphalian system of States and within them. States are the theoretical bridge between social communities of individuals and international law.

All in all, the “new philosophy” can be seen as an upgrade in theory, intended to explain the state of the art in international law and to validate a legal order through its own systemic principles, replacing the presumption of consent. But once this reconstruction of international law has been done, international law becomes suited to Dworkinian theory of law as interpretive (as opposed to positivist theories of law, or natural law).


4 The Features of an Interpretive (Adjudicative) Theory of Law


The features of interpretivism were spelled by Dworking in the last decades, and not with reference to international law. What Dworkin can contribute here, mirrors the logic of his criticism to Hartian theory in the ‘70s: roughly, the positivist view leaves too much to lawyers’ discretion. Note that even with international law, Dworkin now warns that the recurrent appeal to morality as a direct reason for action, outside what law is held to prescribe (as Franck did in the case of NATO intervention in Kosovo)41 would be a fatal undermining of the still fragile international law. What Dworkin is thinking about is the relocation of those choices—deemed to be morally, although not legally, mandatory—as disagreements within the legal domain. And this can be done, as we already know, by interpreting “the documents and practices picked out by the principle of salience so as to advance the imputed purpose of mitigating the flaws and dangers of the Westphalian system”.42

However, as to the nature of law being interpretive, there is no novelty distinctive to international law. Law is interpretive because it postulates a practice where participants can disagree about what the practice (like international law) really requires, and assign a value and a purpose43 to it, achieve insights about conditions of truth of particular propositions of law under those purposes and within the constraints of historical records, documents and relevant materials, sources shaping the object of that practice.44

It is of importance that nowhere Dworkin denies that such structures, rules, and institutions are central to the existence or identification of a legal system.45 However, being law interpretive, a descriptive/sociological view would not be definitive or sufficiently determinative as regards the doctrinal questions concerning what is the law in particular cases. Questions about the truth of propositions of law—or about whether and how a norm (or even a judicial outcome) is “valid”—are normally traced back to the grounds of law,46

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