Symposium: The International Rule of Law – Defying Gravity?

by Heike Kreiger

[Heike Krieger is Professor of Public Law and International Law at Freie Universitaet Berlin and Co-Chair of the Berlin Potsdam Research Group on The International Rule of Law – Rise or Decline? This is the fifth post in the Defining the Rule of Law Symposium, based on this article (free access for six months). The first is here, the second, here, the third here, the fourth here and the fifth here.]

The awareness of a crisis of international law is widespread. The multiplicity of challenges which the international order currently faces suggests that we might not only be confronted with a temporary situation of instability but with much more deeply embedded disruptions and lasting structural changes. Such challenges and changes require us to reflect upon the state and development of international law and its relevance as a normative order for international relations. Therefore, Robert McCorquodale’s article is very timely. If we want to assess the potential of international law to regulate and to adapt to a changing global order we need to identify the functions, objectives, and the intrinsic value an international rule of law has to offer.

McCorquodale chooses a normative approach and offers a definition for the international rule of law which relies on four objectives: “to uphold legal order and stability, to provide equality of application of the law, to enable access to justice for human rights, and to settle disputes before an independent legal body” (p. 16). This effort to develop and illustrate a definition of the international rule of law helps us to distinguish structurally more relevant forms of crisis from temporary instabilities:

McCorquodale identifies the doctrine of pacta sunt servanda as a pertinent case of application for his definition. The doctrine “means that states must comply in good faith with legal obligations to which they have consented“. He submits that it forms an incentive for States to subject themselves to legally binding obligations: “This doctrine benefits all states equally, so that each of them has confidence in reaching legal agreements to secure their own interest and to assist in attaining international legal order and stability“ (p. 20). Indeed, the doctrine of pacta sunt servanda is one of the most fundamental elements of the concept of the international rule of law since it relies on the intrinsic value of the law to create stability and a minimum of trust. Thus, the idea of an international rule of law is significantly challenged when the application of this doctrine is called into question. Certain indications suggest that we can presently observe such a development.

The first indication consists in a systematically relevant disregard for inter­national law. Of course, inspite of their legal obligations States have always violated international law. Thus, I agree with McCorquodale that the existence of an international rule of law does not depend on the compliance with “substantive international legal rules“ (p. 14) but that the international rule of law is a relative concept with “varying degrees of adherence to the rule of law, as perfect adherence is ‘an ideal’“ (p. 3/15). The concept of the rule of law works like a principle whose commands maybe realized to a greater or lesser extent and whose objectives can accordingly only be optimized “with the aim of fulfilling them all over time” (p. 28). However, systematically relevant forms of non-compliance might call basic rules, or even the functioning of the system itself, into question since they affect the doctrine of pacta sunt servanda.

A pertinent debate revolves around the rules on the use of force. Whereas Tom Franck’s famous 1970 essay on Who killed Article 2 (4)? suggests that disregard for the prohibition on the use of force is not a new phenomenon, the significant variety of challenges for these rules implies a structurally relevant quality: Unilateral interventions and unilateral interpretations of UN Security Council resolutions in the cases of Kosovo, Iraq and Libya may have contributed to undermining the credibility of intervening States, if not of the whole Charter system. The impression that some States apply double standards may have resulted in a lack of a forceful UN General Assembly reaction to Russia’s attempt to annex Crimea. The long paralysis of the Security Council in the face of the armed conflict in Syria and in disregard of the Responsibility to Protect questions the legitimacy of the Charter system and, in particular, the right to veto of the P5 once more. Even outside the Charter rules, prohibitions under customary international law have been weakened. State practice in relation to Libya and Syria suggests that States deviate from established obligations in relation to the prohibition of the use of force, in particular in view of the delivery of arms to Libyan and Syrian rebels. The Paris terror attacks 2015 have perhaps again decisively raised the question whether the state-centred ius ad bellum is fit to deal with challenges arising from violent non-state actors. In addition, certain structural developments, such as the cyber-space or the difficulty to characterize attacks and to attribute them to States may have led to a more fundamental challenge for those rules. More importantly even, the 2003 invasion of Iraq might not merely represent a particularly grave case of breaking the rules, but the beginning of a generally more liberal, or rather resigned, attitude towards the prohibition on the use of force and its exceptions. Recent debates among international lawyers about the legality of the different interventions in the civil wars in Iraq and Syria have apparently received lesser attention in State practice or in the general public than the interventions in Kosovo in 1999 or in Iraq in 2003.

A second indication concerns a loss in the confidence to conclude legal agreements. There are at least some ambiguous developments which suggest such a significant challenge to the idea that international law is at all a necessary or useful framework for international relations. A relevant example concerns the “stagnation of international law” (see Pauwelyn, Wessel & Wouters, When Structures Become Shackles, 25 European Journal of International Law (2014) 733-763) according to which States apparently prefer informal forms of cooperation over the conclusion of formal treaties. In the field of climate protection, for instance, such a tendency could entail significant advantages, inter alia, in terms of the possibility of involving non-State actors, or of increasing the willingness to agree on some substantive commitments. However, in other areas of international law not concluding a legally binding agreement might represent a more fundamental challenge indicating a decrease of legal accountability by opening avenues for States to reinforce their discretion and augment their flexibility in the international order. For instance, after the 2011 International Conference of the Red Cross and the Red Crescent the ICRC together with Switzerland promoted a process to strengthen compliance with international humanitarian law and another process to strengthen international humanitarian law protecting persons deprived of their liberty. Both processes were apparently not turned into drafts for a binding international agreement since one could assume that a negotiating process would fail because substantial standards could not have been agreed upon under a binding treaty. But even the turn to informal standard-setting did not save the process from failing. In view of a strong opposition from certain States the adopted resolutions represented a comprise that remained far behind the expectations. It was neither possible to introduce a meaningful compliance mechanism nor to achieve the ICRC’s aim to converge the standards for detention in international and non-international armed conflicts. Instead the resolutions focus on a state-driven process and seem to sideline the ICRC (See Resolutions 1 and 2 of the 32nd ICRC Conference).

These are just some indications which suggest that we might currently observe significant structural changes in the way law is operating as framework for international relations. Suffice it to mention that other elements of the international rule of law which the article identifies are confronted with comparable challenges. In this light, Robert McCorquodale has made an important contribution to identifying the functions, objectives, and the intrinsic value of such a concept. He has developed a definition which offers a standard for assessing the current state and future direction of the international rule of law in a changing global order. At the same time, Simon Chesterman’s post suggests that some of these challenges might themselves have a impact on how to conceptualize a definition when it comes to “thick” standards, such as the inclusion of access to justice for human rights. Defining, conceptualizing and applying the international rule of law is a mutually dependant ongoing effort.

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