Symposium: Janelle Diller’s Response to Robert McCorquodale

[Janelle Diller is Paul Martin Sr. Professor of International Affairs and Law at the University of Windsor Faculty of Law (Canada), on leave from the International Labour Organization (ILO). Her views do not necessarily reflect the ILO’s positions.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, the third here and the fourth here.]]

By insisting on clarity in approaching the “rule of law” at the international level. Robert McCorquodale significantly advances the debate on this important subject. It is indeed inappropriate, as he cogently argues, to use the same institutional and procedural elements to assess the operation of the rule of law in national and in international systems. However, this argument does not necessarily lead to acceptance of two separate and distinct concepts relating to the rule of law — an “international rule of law” and a “national rule of law”.

An alternate approach to a bifurcated system considers the “rule of law” as a single umbrella concept that operates across international, national and other legal orders. This approach is reflected in UNGA Res. A/67/1 that applies the rule of law to all relevant actors “at the national and international levels” (McCorquodale at n.6). Instead of using the term “international rule of law”, the UNGA Resolution refers to “international order based on rule of law” and “rule of law at the international level”. This vision sees a single “rule of law” principle acting through pluralistic legal orders. This umbrella concept is sourced to shared meta-values and principles in international society. For example, the General Assembly recognized that “there are common features founded on international norms and standards which are reflected in a broad diversity of national experiences in the area of the rule of law”. As the Resolution reflects, these shared values and norms are given effect through instrumental frameworks that commit States and non-state actors to action at international and other levels, including public and private governance and dialogue mechanisms, and arrangements for sharing responsibility for development and other matters of common concern.

The umbrella concept of rule of law also permits room to accommodate both thin and thick elements in the understanding of the rule of law. The umbrella approach understands the rule of law itself as a general principle of international law based on the social and legal legitimacy of shared values and normative principles which are adapted in practice to particular circumstances.   As suggested by constructivist IR theory, values with social legitimacy emerge through a process of active participation of relevant social actors – in this case, States and relevant non-state actors in international society. Such values receive more concrete articulation through international norms and standards as a function of their predictability, generality and other criteria of legal legitimacy (Brunée and Toppe, Legitimacy and Legality in International Law). The legitimacy that undergirds the umbrella rule of law means that, as McCorquodale asserts, varying degrees of adherence to the rule of law do not mean there is no such value-laden concept. (p. 15) Indeed, as in the UNGA resolution, the linkage between legitimacy and practice leads to the further inquiry of whether and how the incomplete actualization of the elements of the rule of law at international and other levels is related to the degree of effectiveness – or ineffectiveness – of the instrumental frameworks for governance, cooperation and shared responsibility among State and non-state actors at international and other levels.

McCorquodale’s recollection of Bishop’s concepts and ideals of an international legal order tied to an “international rule of law” is a useful starting point that calls for updating. (p. 16) That listing, compiled a little more than a decade after the creation of the United Nations, reflects its foundational elements: reliance on law instead of arbitrary power; settlement by law instead of force; and cooperation for social aims in a way that promotes the values of freedom and human dignity. A recent comprehensive mapping of UN and other international instruments and non-state actor statements demonstrates the further development of that foundation. Four interdependent meta-values of a globalized system based on the rule of law were identifiable: freedom, dignity, equity/justice and peace/security. (2016 update of a 2003 ILO-sponsored study for the work of the World Commission on the Social Dimension of Globalization). The study of instruments covering a wide range of international concerns found that these meta-values are articulated in the form of concrete normative principles addressing such issues as: human rights, equality –as between individuals and separately between States, tolerance, democracy, and respect for the environment. To put these principles in practice, the study identified in the instruments a number of internationally-agreed frameworks by which States and non-state actors share responsibility for international development and other cooperation (including Bishop’s social aims as well as economic, environmental and crime prevention goals). Elements necessary for the effective governance of States, markets, and international organizations at internal and international levels were also ascertained.

The commitments in many of the instruments linked international and national action to help achieve the meta-values and normative principles. This integrated approach builds a coherence of purpose and synergy of operation in the application of the rule of law across the pluralistic legal system. As McCorquodale observed, human rights indeed form part of the system; at both international and national levels, they serve as normative outcomes and enabling processes to give effect to the meta-values of human dignity, freedom and equity. The procedural rights identified by McCorquodale – fair trial, liberty, equality and non-discrimination –indeed serve an important purpose as both rights and enabling conditions; however, the exclusion of other human rights in his construct of rule of law is subject to debate (p. 17).

McCorquodale rightly demands that the international system’s arrangements for compliance be assessed on its own terms, not in comparison with national institutions. The various common elements and purposes of the rule of law, are applied in different ways and means depending on the legal order concerned . His “patchwork” coordination of dispute settlement through the myriad of international courts and tribunals in important spheres rather than a single court is a useful perspective on the issue. However, this leaves unanswered how to achieve satisfactory compliance with the rule of law’s meta-value of equity/justice. The need for coherence in advancing compliance with the rule of law across important areas of common concern remains without a predictable solution in practice. The “web of discourse” across judicial bodies (McCorquodale, p. 23) does not yet adequately address the dissonance that arises in practice where mandates overlap (e.g., the European Court of Human Rights and the European Court of Justice). In addition, gaps in international judicial enforcement remain, notably in relation to the international responsibility of international organizations. The recent drafting of the International Law Commission’s articles on international responsibility, while focused on secondary rules, provides some normative advancement essential to advancement toward effective dispute settlement in this area. It suggests, for example, that the international responsibility of international organizations includes the responsibility not to commit, or to conspire to commit, violations of peremptory norms. The organizations are even to cooperate to bring such a breach to an end and to not recognize the unlawful situation as lawful or to aid or assist in maintaining the situation. (ILC articles 41 and 42, ILC Commentary to article 41, para 1).

Beyond peremptory norms, the ILC articles further advance the rule of law in the international organization’s legal order by applying rules of customary international law to the United Nations and other international organizations where such rules are relevant to the functioning entrusted to them. (ILC Commentary to article 41) It is important to keep in mind that the functions of the organization being exercised in a given situation play a determinative role in the nature of the international obligation. As an administrator of territory with functions including to maintain public safety and security and to fight impunity, the UN, acting as or through the pubic authority of the State, would be obliged to respect the customary international law and treaty law obligations of the State (by operation of pacta sunt servanda). This reasoning supports the Ombudsperson’s conclusion in Kosovo that, by creating UNMIK as a surrogate state, the UN had imposed all ensuing obligations of the State to secure human rights to everyone within its jurisdiction.   McCorquodale’s further proposal that norm-making in itself creates such obligations (p. 24) beyond administration of territory may only be relevant where the norm-making function concerns human rights norms based on the organization’s own Charter obligations (as in the case of the United Nations).