[Joost Pauwelyn is a Professor of Law at the Graduate Institute of International and Development Studies in Geneva and Visiting Professor at Georgetown University Law Center. This is the fourth 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 and the third here.]]
Both domestic and international normative regimes may limit our freedom and affect our daily lives. As a result, as Prof. McCorquodale implies, both need to be subject to the rule of law or mechanisms that keep the exercise of power accountable (in earlier work, I referred to this as “principled monism”). The fact that international affairs are, at this stage, not always conducted in line with the rule of law (just think of UN immunity and the Haiti cholera case) does not mean that there cannot be, or should not be, a rule of law at the international level.
Two tensions struck me, however, in Prof. McCorquodale’s article, when it comes to defining the rule of law operative at the international level. Firstly, the article, in my view correctly, distinguishes the rule of law from “the existence of, and compliance with, substantive international law obligations” (p. 15). On that ground, it does not include “all human rights in the rule of law”. Later on, however, the definition of international rule of law provided does include “access to justice to protect human rights”. Why only access to justice to protect some substantive rights and not others? Does this definition not imply, contrary to the author’s earlier statements, that human rights are part of the rule of law (if you must provide access to justice to protect human rights, surely, you must have human rights in the first place?). Conversely, does it put economic or contract rights outside of the access to justice commitment?
Secondly, the article, once again rightly so in my view, argues for the existence and application of a rule of law also at the international level. As noted earlier, when our freedom is limited, why should we care where the freedom-restricting norm comes from (national or international), who made it (states, parliaments, regulators or private standard setters) or what form it takes (formal or informal law)? Taking the rule of law seriously means it should apply across the board (see Pauwelyn, Wessel & Wouters, When Structures Become Shackles, 25 European Journal of International Law (2014) 733-763).
At the same time, Prof. McCorquodale keeps repeating that “the application of the concept and definition of the national rule of law to the international system is misconceived” (p. 15). To the extent this is meant to say that implementing the rule of law at the international level may take different forms and institutions, it is unobjectionable. If it means that the mere nature of the international system fundamentally changes the requirements or very definition of the rule of law, I find it difficult to accept (hence, I am not sure it is correct to define an international rule of law separately from a domestic rule of law). Accountability domestically may work in some forms (say, parliamentary approval or ministerial responsibility), at the international level in other forms (say, state consent, peer review or principal-agent controls). But that does not mean we need one definition of accountability domestically, another internationally. Indeed, domestic institutions may ensure or assist in the implementation of an international rule of law (Kadi case?). Conversely, international mechanisms may operationalize or facilitate domestic rule of law (think of a WTO or investor-state tribunal condemning due process or denial of justice violations or nudging local governments away from discriminating foreigners). In today’s context, maintaining bright line distinctions between domestic and international legal regimes, formal and informal law, public and private standard setting is increasingly artificial.
Another bifurcation, black or white distinction, that is common, and also Prof. McCorquodale implies it, but that is misleading, is that separating rule of law from politics (at p. 3: “the rule of law … is a crucial part of the refutation of international law as being either politics or lacking in normative legality”). Rule of law (reducing exit options) is enabled by politics (understood here as voice, contestation, control, state or popular expression of preferences); conversely, rule of law (less exit) can only be maintained with a sufficient level of politics (or voice). In The Transformation of World Trade (104 Michigan Law Review, 2005, 1-70) I explained this bi-directional interaction in the context of the global trade regime. It is not a story from politics to law, but law enabled by and constantly requiring politics. In my more recent The Rule of Law Without The Rule of Lawyers? (109 American Journal of International Law 761-805), I show how today’s (granted, limited) rule of law in the WTO is enabled by a relatively inexperienced pool of panelists, most of whom are government officials, many of whom are not even lawyers, a pool that is, however, representative and inclusive. The more experienced pool of investment arbitrators, far less diverse and more polarized, coming mainly from private practice, in contrast, led EU Trade Commissioner Malmström to tweet that: “We want the rule of law, not the rule of lawyers.”
In that article I used “rule of law without rule of lawyers” tongue in cheek, without really defining either notion. Prof. McCorquodale, in his article, took the extra step that, so far, many (including this author!) avoided. Doing so he clears a major path ahead, tackling in a clear but pragmatic way core questions of definition, implementation and monitoring of the rule of law irrespective of where the action takes place.