20 May Symposium: Response–Defining the International Rule of Law and Moving Without Gravity
[Robert McCorquodale is the Director of the British Institute of International and Comparative Law, Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London. This is the sixth and final post in the Defining the Rule of Law Symposium, based on this article (free access for six months). For the other contributions, see links below.]
I am immensely appreciative of the deep thought, and the time and effort, which the contributors to this Symposium have undertaken. My thanks, too, to the editors of Opinio Juris for enabling this to happen.
My main response to the comments on my article in the ICLQ (free access for 6 months!) is delight that there has been some real engagement with the definition of the international rule of law. For too long there has been a great deal of talk and reference to the international rule of law but far too few attempts at defining it. Each of the contributors offered thoughtful and constructive views as to the definition I proposed, and none dismissed the idea that there could be an international rule of law and none took that view that it could not be defined. This is a significant step.
In terms of their comments, Janelle Diller provides a useful insight into the operation of the international rule of law across pluralistic legal systems and by international organisations, and she warns of the problem of a patchwork of compliance systems in providing a true access to justice in the international legal order. Heike Krieger astutely shows the need for the international rule of law at a time when there are some indications of significant structural changes in the way law is operating as framework for international relations. Joost Pauwelyn is wary of the breaking of a link between domestic rule of law and international rule of law, as he helpfully shows that they can both facilitate and operationalise each other. Indeed, Simon Chesterman notes that I do fall back on domestic law analogies at times in any event. Simon and John Tasioulas focus on the human rights aspects of my definition and, while neither disagrees with the inclusion of human rights, they offer insightful and perceptive comments about how to include and exclude human rights within the international rule of law.
I accept John’s comments about human rights being about values and morality, and I would note that it does become, due to the nature of the international system, also about law. While law constrains and limits human rights (not least by the restriction of obligations being solely placed on states under international human rights treaties), it also offers a language to contest and to argue for the justice that should be part of the international rule of law. I resisted strongly the view that the rule of law must include all human rights, as being both conceptually problematic and as diminishing human rights as distinctive idea. Yet, if the international rule of law is to include access to justice (as I argue it must), it should include those human rights which are directly linked to the means of ensuring the effectiveness of the international rule of law. This requires the inclusion of substantive rights, such as the right to a fair trial and right not to be discriminated against, which are directly related to the rule of law elements of having independent courts and tribunals, and the equality of all before the law. It does not include rights such as the right to privacy or the right to education as, while they do require the rule of law to enable access to a remedy for their violation, they are not an inherent part of the rule of law elements themselves. There is clearly more work to be done by us all on clarifying the relationship between the international rule of law and human rights.
I trust that this Symposium encourages others to undertake work on this difficult and fascinating area. I hope we can all defy gravity a little longer to do so.