Symposium: Lies, Damned Lies, and the International Rule of Law

by Simon Chesterman

[Simon Chesterman is Dean and Professor at the National University of Singapore Faculty of Law. This is the second post in the Defining the Rule of Law Symposium, based on this article (free access for six months). You can find the first post here.]

Imprecision of meaning in international law is rarely accidental. Diplomacy is an architecture of compromise, with states routinely adopting malleable or self-serving definitions depending on their interests or aspirations.

So it is with the international rule of law. A decade ago, every member state of the United Nations recognized the need for “universal adherence to and implementation of the rule of law at both the national and international levels” and reaffirmed their commitment to “an international order based on the rule of law and international law.” Any term that can garner such universal support, from Norway to North Korea, is either so vague as to incorporate radically different interpretations of its content or so vacuous that there is no content to speak of.

Academics, generally, prefer precision. Robert McCorquodale is to be commended for his thoughtful and thought-provoking effort to pin down what the “international rule of law” can and should mean. In particular, he is right to push back against simplistic analogies between the concept of the rule of law at the domestic and international level. The function that law plays in a notional horizontal society of equals — the sovereign equality that is the founding myth of international law — is radically different from the role it plays in a vertically ordered state in which power is distributed by reference to a sovereign or in accordance with some form of constitution.

But this structural difference also points to the problem with McCorquodale’s approach to defining the international rule of law. He generously cites my own work in this area, which he correctly identifies as seeking to offer a functionalist approach to what the rule of law might do at the international level — viz. “the application of rule of law principles to relations between states and other subjects of international law”. Such a minimalist definition of the rule of law, he notes in passing, “will suit those states which are resistant to a broader understanding of international legal obligations” (p.289). This is a curious challenge, but points to the larger concern that I have with his own maximalist (thick, substantive) conception of the rule of law as necessarily encompassing the objectives of “legal order and stability; equality of application of the law; protection of human rights; and the settlement of disputes before an independent legal body” (p.292).

The inclusion of human rights in particular begs the question of whether a “thick” conception of rule of law is required in the first place. I will not revisit the thin/thick (or formal/substantive) debates here, but would align myself with Raz’s argument that a “thin” conception does not relegate one to the arbitrary exercise of power in a rule by law state. At the domestic level, this battle is played out when McCorquodale deploys Tom Bingham’s stirring response to Raz — though it is a response essentially based on a definitional shift that the rule of law means the rule of good law (pp.283-284).

At the international level, such a move is even more problematic. Indeed, warnings against a priori jumps to incorporate human rights can be found in the foundational human rights texts themselves. The Universal Declaration of Human Rights, which McCorquodale cites, provides in its preamble that “human rights should be protected by the rule of law”. Simply as a matter of construction it is tautological to define the rule of law as including the thing it is intended to protect. Similarly, McCorquodale cites (p.283) the Declaration on the Rule of Law, italicizing for emphasis the relevant phrases: “[We] reaffirm our commitment to the rule of law and its fundamental importance for … the further development of the three main pillars upon which the United Nations is built: international peace and security, human rights and development.” (The ellipsis, it should be noted, skips over the statement that the rule of law is also fundamentally important for “political dialogue and cooperation among all States”.)

McCorquodale sensibly does not seek to incorporate all human rights, but when he attempts to specify which to include, he falls back on the domestic law analogy that he has earlier so rightly spurned. Hence his list includes “the right to a fair trial, the right to liberty, the right to equality and the right not to be discriminated against” (p.293). All very important, but clearly linked to domestic law traditions and problems.

The justification for the inclusion of these specific human rights is linked to their presence in the “main global human rights treaties” and status as customary international law (p.293). The fact that these are obligations on states is not controversial, but folding them into a definition of the international rule of law raises additional problems when considering McCorquodale’s other contribution in his article: the attempt to find a definition of the rule of law that applies not only to states but also to international organizations and other subjects of international law.

It is arguable, for example, that the United Nations is subject to human rights obligations despite not being a party to any of the “main global human rights treaties”. Nevertheless, to assert that rule of law principles that apply to the UN and other international organizations incorporate such obligations must be based on more than a claim that such an assertion is “appropriate” (p.300). This is borne out in the Kadi cases and the UN’s Guiding Principles on Business and Human Rights, on which McCorquodale seeks to rely. In the former, the European Court of Justice applied rule of law principles in interpreting human rights obligations that are explicitly provided for within the EU legal system. In the latter, John Ruggie has been criticized by NGOs and activists precisely for his unwillingness to assert without foundation that corporations are bound by human rights obligations. (For more on this, see my “Lawyers, Guns, and Money”.)

McCorquodale does not go so far, but he concludes that section of his piece with a telling coda: “the application of human rights to the operations of the UN and other international organizations, as well as their applicability to non-state actors, are consistent with the human rights objective of the international rule of law” (p.303).

Does the rule of law really have a “human rights objective”? One can make a strong case that the rule of law makes human rights possible — that a world ordered by law is more predictable and stable, more prosperous and more harmonious, than one ordered solely by power. This is the transition that, over centuries, was made in states that went from “rule by man” to “rule by law” and now “rule of law”. But the content of that law at the international level is distinct from the ordering principle that establishes the conditions for law in the first place.

Diplomacy, once again, is an architecture of compromise. McCorquodale has made a significant contribution to debates over what the international rule of law can and should mean, though his conclusions are more normative than descriptive. My concern is that by seeking to blend form as well as substance, and to attribute to the rule of law an agenda that many states would equate with a Western liberal political bias, the structure’s foundations will be unable to bear the burden placed upon it.

This is not to suggest that human rights are unimportant. It is a signal achievement that human rights have moved from aspiration to norm in a mere seven decades, with all countries now submitting themselves to the Universal Periodic Review, for example. Such an achievement is clearly attributable in part to widespread acceptance of the rule of law at the national and international level. And, as member states agreed in the Declaration on the Rule of Law, human rights and the rule of law (and democracy) are “interlinked and mutually reinforcing” — but they are not the same thing.

http://opiniojuris.org/2016/05/17/symposium-lies-damned-lies-and-the-international-rule-of-law/

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