Rule of law
Image Source - https://rb.gy/1dywaj

This article is penned down by Ojasvi Gupta, a student of the Faculty of Law, Banaras Hindu University. Through examining the evolution of the term, this article has sought to establish a definition of international rule of law and analyze its standing through developments made and challenges conquered.

Introduction

Rule of law has been defined in great detail, in both thin and thick forms by philosophers and jurists since the idea of the modern legal world began to take shape. It is the rule of law that envisages the idea that our world and our societies remain bound together and that peace and order prevails over chaos. It unites us around common values and anchors us in the common good. The international rule of law is analyzed relatively as opposed to its national counterpart. The protection of the interests of all States and maintaining international stability requires the framework of an international rule of law governing State-to-State relations. It also reflects the history of efforts to restrain the sovereign power of some over many that continue in many States today.

Evolution of the concept

The concept of rule of law remains contested to this day. This is mainly due to the difference in time and geology of its conception by different nations. The earliest notion of rule of law in human history is coincident with the earliest evidence of laws- the code of Hammurabi. These earliest written, or more accurately, a stone inscribed laws were the closest to the idea of the legal system but they do not reflect the values of the modern interpretation of rule of law.

Few decades fast forward and Aristotle examined a detailed analysis of the constitutions around the world and concluded in ‘The Politics’ that rule of law was preferable to that of any individual. This along with the opinion of Plato, who stated that rule of law is the best option, second only to the rule of a philosophical king- concludes it as the most practical and efficient form of government. There have been other opinions from the Asian region but they correlate more with ‘rule by law’ than rule of law. 

Gradually, various elements of rule of law came to be recognized in the Anglo-American tradition. The Magna Carta of 1215 and the recognition of the fact that the King is not subject to man but to God and the law in the seventeenth century by the then Chief Justice Sir Edward Coke of Britain were small accomplishments. Detailed work on rule of law was brought forward by the British constitutional scholar A.V. Dicey, in 1885. The German version of this principle, Rechtsstaat (the law-based State, or constitutional State) is assumed to be the result of Immanuel Kant. Similar to this is the French concept of État de Droit. The 1789 Declaration of Rights of Man laid down a crucial foundation for human rights- an essential characteristic of rule of law, but the realities do not always coincide with the laid down theory.

Core elements of rule of law

Rule of law is the underlying principle of a democratic modern nation. Although titled as a rule, it is easier to grasp its meaning in the phrase- ‘supremacy of law’. The central idea behind this principle is that decisions are made in accordance with and after applying set, known laws to maintain the thought that nobody is above the law. It implies that every citizen is guided and governed by the law of the land and there is an absence of arbitrariness and discretion.

Everyone is subject to the law, including the lawmakers, executors, and interpreters. This concept originated with the birth of the modern ‘Nation-State’, with an aim to ensure that the law, and not a man, is the governing foundation. Earlier, kingsmen and churchmen were considered above the domain of law as they were the lawmakers themselves. Though Chanakya, as well as many medieval European philosophers, have hinted at the concept of rule of law, its implementation could not be achieved. In modern times, rule of law is the norm.

Rule of law can be theoretically studied through two counterparts:

  • Substantive law
  • Procedural law

The basic elements of rule of law, as postulated by A.V. Dicey are:

Absence of arbitrary power 

Rule of law specifically insists on the absence of arbitrariness or prerogative. There should be absolute supremacy of law as opposed to the discretionary power of the government or any governing body. An element of discretion brings in violation of rules or implies an absence in their consistency. The rule of law stands for the view that decisions are taken only by the application of known principles of law.

Equality before law

This element is the simple statement of no man is above the law. Equality as a general principle of law is linked to legal, political, as well as moral spheres. The notion of equality is inherently founded in internationally recognized human rights as well as in the corporation of justice. This implies an absence of privileges for anyone, especially a government official, subjecting all the people irrespective of status to the ordinary law of the land.

Protection of individual liberties

No person should be deprived of their dignity and individual rights except for a breach of law established in the ordinary legal manner. Every person under the umbrella of law is provided with universal rights and the law provides the protection of these rights. In addition to this, the laws also ensure that, if and when the liberty of an individual is infringed upon, there is accountability and the best of possible remedies. 

With the passage of time, philosophers and legal scholars have evolved many other elements embedded in the rule of law, some of them are:

  • Legal certainty;
  • Access to justice;
  • Limitation on the power of government;
  • Judicial review;
  • Transparency;
  • Accountability.

International rule of law

There has been no consensus on the definition of international rule of law, although the majority of organizations and nations agree on its virtuous notion. At times the term is used synonymously with law or legality, at other times it appears to import broader notions of justice. In current debates having societal contexts, it refers neither to rules nor to their implementation but to a kind of political ideal for society as a whole, i.e., an international society.

In contemporary times, we can examine international rule of law or some of its noticeable aspects through observing modern developments. Analyzing the functional manner in which the rule of law is deployed in international forums focuses on important qualifications on how the rule of law may be adapted as a meaningful concept at the international level. Such an observation includes examining the extent to which international organizations have internalized the rule of law in their own procedures.

An agreement on the meaning of rule of law requires a detailed formulation of its content. To gain a functionalist understanding of this principle in the international realm, the relationship between sovereign to sovereign and subjects to other subjects is a great step to begin.

In the most basic sense, the ‘international rule of law’ can be understood as: 

  • The embodiment of rule of law principles in relations between states and other subjects of international law. 
  • The ‘rule of international law’ could privilege international law over national law, establishing, for example, the primacy of basic human rights over national legal arrangements. 
  • It denotes the emergence of a normative regime that governs individuals directly without formal mediation through existing national institutions.

Characteristics of International rule of law

This concept has its own peculiar characteristics. A non-exhaustive list would include:

  • A legal structure defining the relations between States as members of the international community.
  • The founding principle of most international organizations.
  • A powerful tool not only in human rights protection but also in their effective promotion.
  • Possess the merit to serve as an international standard, a development strategy, and as a tool of interpretation of international sources of law.

Elements of International rule of law

An exhaustive list of the elements of international rule of law is beyond the scope of this article. Deriving from the domestic aspect, the following are some of the elements in the international context:

Completeness and certainty of the law

The law must be capable of governing all situations which might arise within it, and that accordingly the courts must be able to decide on the basis of applicable law all cases brought before them.

Equality before law which predominantly manifests itself in the principle of sovereign equality of States

All States which come within the scope of a Rule of Law must be treated equally in the application of that rule to them without any exceptions.

Absence of arbitrary power

There should be a well-defined set of limits of areas in which international law allows a State to act at its pleasure without having to account for its actions internationally. 

Effective application of the law

The law has to be effectively applied, there being three different aspects of the effective application: 

  1. Judicial settlement – there must be an ability of a State which finds itself with a legal difference with another State to have recourse to a judicial tribunal to have those differences resolved.
  2. Enforcement – the ability of the international community to ensure that if a State refuses to comply with the law, the law can nevertheless be forced against it. 
  3. Application in practice – regular application of the law by States in their day-to-day dealings with each other as part of a regular pattern of their international relations.

Promotion of rule of law at international forums and organizations

Through treaties, conventions and international organizations’ initiatives, the rule of law has been promoted at the international level.

  • Human rights treaties have advocated the rule of law as the foundation of a rights-respecting State. According to the recommendation of the 1993 Vienna World Conference on Human Rights, the United Nations should offer financial assistance upon request to a nation’s initiative in reforming judicial establishments, including education and training of judicial officers and security forces in human rights, and any other professional class and activity relevant to  better functioning of the rule of law.
  • The rule of law has long been seen and promoted as a vehicle for achieving the goal of economic development. The World Bank, primarily a commercial body, has stated rule of law as an important factor as economic development depends to an extent on the fact that nations have confidence in and abide by the rules of society. Countries and transnational organizations like the European Union have promoted the rule of law as essential for economic growth, especially in the backdrop of the events related to globalization.
  • Developing states themselves have embraced and promoted the rule of law, acknowledging in the 2005 World Summit Outcome Document that good governance and the rule of law at the national and international level is essential for primary goals, i.e., sustained economic growth, sustainable development, and the eradication of poverty and hunger. More recently, security actors, notably the United Nations Security Council, have promoted the rule of law as a form of conflict resolution and a way to maintain world peace.
  • At The United Nations World Summit in 2005, Member States unanimously recognized the universal need for adhering to and implementing the rule of law at both the national and international levels and reaffirmed their commitment to an international order based on the international rule of law.

Challenges to the international rule of law

Although there has been a general acceptance of theorizing the international rule of law, such an establishment reflecting the principles of rule of law has not taken a concrete form. 

While analyzing this concept, it is important to take account of structural differences between international law and domestic law, i.e., the horizontal organization of sovereign states and quasi-sovereign entities in the former as opposed to the vertical hierarchy of subjects under a sovereign in the latter. The conception of the rule of law was originally developed domestically, keeping the nation-state as a sovereign entity. Without a mechanism that ensures the sovereignty of the nation intact, the rule of law cannot be embedded internationally. 

Secondly, we have the debate on whose version of rule of law will prevail at an international level. Although many jurists and legal scholars have abstracted the rule of law to few basic principles, each nation’s notion of the concept may not be the same. This is largely due to the difference in the historical and political context within which the rule of law evolved in each society.

Inarguably, many place the United Nations in high regard for laying down the foundation of the international rule of law. The embodiment of rule of law by the United Nations remains questionable. This is due to the following reasons: 

  • The origin of the idea of an international governing body dates back to the year 1944, when the so-called great powers of the world, namely US, UK, Soviet Union, and China had a conference. Their main concern was their role in policing the post-war international order, with a mention of international cooperation in the solution of humanitarian problems in the resulting proposals. This was less of an international attempt to inculcate the principles of rule of law, and more like the conception of legal hegemony over other countries.
  • Since then, the developments from the League of Nations to the United Nations have operated in the same manner. The welfare and humanitarian approach have masked to a large extent the system of rule by the law of these international establishments.
  • There are institutions other than the UN, that govern and regulate the countries to promote international peace and order, but their extent of authority, by way of the members or their enforcement capability, remain out of the race of providing a bedrock for rule of law.
  • The peace and security powers given to or asserted by its Security Council are evident enough of the legal hegemony acted out by the members. The Security Council has 5 permanent members, namely – Russia, China, the United States of America, the United Kingdom, and France. They share veto power over the proposals of every member.
  • The International Criminal Court (I.C.C.) exercises only complementary jurisdiction. Thus, there is no sound judicial structure that can replicate the judicial system established at the national level in the majority of the countries.
  • There is still hope that the national model of rule of law is transposable to the global level but this process remains hinged on two vital facts. First, whether the concept of rule of law as reflected in Anglo-American constitutional doctrine and originally conceived to control the exercise of power within the domestic constitutional framework, can be successfully embedded in the international legal system where no central power exercises control over the community. Secondly, whether this development requires a change of principles in the concept of rule of law in order to adapt it to the different legal conditions of international society. 

Conclusion

We can say that the concept of international rule of law has a multifaceted nature. The doctrine of rule of law should be understood as an essential part of the legal system of a society in its global sense. As a legal value occurring at the international level, it has both political and legal connotations. It reflects the social needs of contemporary society through the creation of a specific set of requirements that must be met by every legal State. 

Steps towards an international rule of law would include more general and consistent application of international law to States and other entities. It also entails a fundamental change in the structural irregularities such as the veto power over Security Council decisions presently enjoyed by a handful of countries. Overall, it is important that international rule of law must not be reduced down to the existence of, and compliance with, substantive international law. In Nicholas Upton’s words, “the fight for the rule of law in human relations is long and never-ending”.

References


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

LEAVE A REPLY

Please enter your comment!
Please enter your name here