International Law Coupled with Rule of Law

Introduction

Law is an instrument that binds society together in a peaceful thread with recognized ethics and rule. Herein, it is referred to whether international law obliges the rule of law (hereinafter: the ROL) and whether it aids individual freedom and welfare or it serves as an accommodation for unlimited power of national rulers[1]. Furthermore, due to the particular features of international law and the international community, as the community of sovereign States, the question is if international law is appropriate for any in the Rule of Law. Some uncertainties concerning the issue have appeared. We shall attempt to show that due to the consequence of the “global village”, the ROL, limited to national law and national borders, does not serve and entail the service of international law. After a short fortitude of standards affecting the ROL, we shall exert to explain why the Rule of Law pleas international law. Considerations on the irregular characteristic of international law and international legal order from a perspective of the ROL will trail.

The impact of the scope and abstractness of provisions of international law, of contemporary state international judiciary and the enforceability of international law to the ROL will be sightseeing. Specific references to the revolt of the European Court of Justice in contradiction of arbitrary interference of the UN Security Council in human rights of individuals, exaggerated by sanctions, and to the eminent role of international human rights law in the ROL will be made.

Rule of Law and International Law

A. V. Dicey established the Anglo-Saxon doctrine of the ROL as a restriction of governmental supremacy by the law in favour of basic rights and freedoms. According to him the main elements of the ROL are equality before the law and legal certainty[2]. Factually, the ROL articulates to the limitation of the absolute power of a ruler, but contemporarily it narrates to the control of the State’s authority by the judiciary.[3] Concluding his lecture on the ROL, carried at Cambridge University on 16 November 2006, Lord Bingham stated that the ROL “does depend on an unspoken but fundamental bargain between the individual and the state, the governed and the governor, by which both sacrifice a measure of the freedom and power which they would otherwise enjoy”.[4] The law should not have retroactive effects.[5] The law has to be controlled by the principle of equality[6] and to be in accord with international human rights standards.[7] “Absence of arbitrary power” is a vital obligation of the ROL.[8] The other standards mention the supremacy of the law, States,[9]governments[10], public authorities,[11] institutions, public and private entities and individuals have to be subjected to the law[12] and no one should be above the law.[13] The third group of standards distinguishes the judiciary in the organization of a state: an independent judiciary established by the law,[14] procedural guarantees of the fairness of procedures “and allowing people an opportunity…to match the legality of official action, particular when it influences on vital interests in life, liberty, or economic securities.

Enforceablity of International Law

Concerning the enforceability of WTO law, Pascal Lamy, Director-General of the WTO, says: “Everything is done to ensure that the complaint if it is substantiated, is followed by concrete effects. After the adoption by the panel, and possibly the Appellate Body, of their ‘recommendations’, WTO Members continue to monitor and to follow up on the implementation by the losing country of the conclusions of the case. Furthermore, if the conclusions are not fully implemented, the winning party that so requests may impose countermeasures in the form of trade sanctions”.[15]The European machinery of control over respect for human rights, consisting of the European Court of Human Rights and the Committee of Ministers of the Council of Europe, which screens the implementation of the court’s judgments, is famed for its capacity to be effective.[16] The omission of a State from the membership of the Council is the last degree in the case of persistent and grave disrespect for human rights of ultimate importance. Regarding the judgment of the International Court of Justice Article94 (2) of the UN Charter sanctions the UN Security Council, upon an appeal of a party to a dispute, to take acti ons to give enforcement to a judgment. But the Security Council will take action if it supposes it is necessary. For the prevailing time period, the Security Council has not taken such actions.Mr. Lamy referred to counter-measures as the latter alternative at the disposition of States to enforce the law. Certainly, in a community of sovereign States,counter-actions and sanctions are a latter alternative for the enforcement of international law. However, it is a considerable issue on how much they are active in relationships between small and big countries.[17]The presence and acts of enforceable mechanisms rest on the willpower of States. Despite some variations, it seems that there is a rising trend of constructing such apparatuses.

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Conclusion and Highlights

Standards of the ROL are often separated between those associated with some qualities of the law, like sufficient clarity and determinative power of the legal provisions to exclude the arbitrary exercise of a State’s authority, and people associated with a legal order, the separation of powers, organization of the judiciary, etc. Aims of the ROL include providing all fields with legal certainty and protection of individual freedom and security against illegal interferences. Since many illegal interferences are trans-border and are available from foreign States or individuals in foreign States, a successful defence of private liberty and well-being isn’t possible without the law of nations.

A State may have whatever power, but in its “sovereign isolation,” the State isn’t capable of protecting its citizens from foreign interferences. International cooperation and the law of nations are necessary. the actual characteristics of the law of nations and international legal order aren’t obstacles for the law of nations to serve the ROL. However, the scope and quality of the service of the law of nations to the ROL varies from one to the opposite legal field and from one to the opposite world region within the same legal field and depends upon the interests of States.

The exceptional breadth of provisions of the law of nations features a legitimate purpose, that purpose being the accommodation of particular national interests within the common goal of general interests. The international reality in fields like economy or environment is way more complex than national, and it requires harmonization of a larger number of particular interests. thanks to this fact, international provisions in some fields are probably broader than national, but it doesn’t harm the standards of clarity and legal predictability. Most of such international provisions need to be implemented in internal legal systems and by transforming them into internal law States can meet the standards of the ROL. Even beyond implementation, there are enough means at disposal of subjects for them clarification in concrete situations. Even a little harm which could be caused to legal certainty by evolutive interpretation of abstract provisions of human rights treaties by international courts and bodies is compensated beforehand of international standards of human rights, delivered to be evolutive interpretation. the chances of an international judicial determination of the law of nations in disputes or enforceability of law of nations vary from one to a different area of law of nations and from one to a different world region within the same area. After the Second war, the amount of international proceedings between States and individuals has grown. That meant that possibilities of international judicial or quasi-judicial determination of the law of nations in disputes between individuals and States have risen.

The revolt of the ECU Court of Justice against arbitrary interference of the UN Security Council in human Rights has opened a new horizon of the ROL in the relationship between individuals and international organizations.

Also Read: Introduction to International Criminal Law


[1] J. Waldron, “Are Sovereigns Entitled to the Benefit of the International Rule of Law?”, The European Journal of International Law (EJIL) 2/2011, 316−343.

[2] A. V. Dicey, Introduction to the Study of the Law of the Constitution, Liberty Classics, Indianapolis 1982., 120. G. Vukadinović, D. Avramović, Uvod u pravo, Pravni fakultet u Novom Sadu, Novi Sad 2014, 107.

[3] W. C. Whitford, “The Rule of Law”, Wisconsin Law Review 3/2000, 724.

[4] L. Bingham, “The Rule of Law”, Cambridge Law Journal 1/2007, 84.

[5] J. Crawford, “International Law and The Rule of Law”, Adelaide Law Review 24/2003, 4.

[6] J. Waldron, 317, S. Chesterman, 467, R. E. Brooks, “Conceiving a Just World under Law: A Panel Summary of Remarks by Frederic L. Kirgis”, Proceedings of the 98th Annual Meeting of the American Society of International Law 2004, 126.

[7] The rule of law and transitional justice in conflict and post-conflict societies, Report of the UN Secretary-General, 23 August 2004, S/2004/616, 4; R. E. Brooks, 126.

[8] J. Crawford, 4; J. Waldron, 316; The rule of law and transitional justice in conflict and post-conflict societies, Report of the UN Secretary-General, 23 August 2004, S/2004/616, 4; S. Chesterman, 467; R. E. Brooks, 126.

[9] J. Crawford, 4.

[10] S. Chesterman, 467.

[11] The rule of law and transitional justice in conflict and post-conflict societies, Report of the Secretary-General, 23 August 2004, S/2004/616, 4.

[12] The rule of law and transitional justice in conflict and post-conflict societies, Report of the Secretary-General, 23 August 2004, S/2004/616, 4.

[13] J. Waldron, 317.

[14] J. Crawford, 4.

[15] P. Lamy, 976

[16] D. Anagnostou, A. Mungiu-Pippidi, “Domestic Implementation of Human Rights Judgments in Europe: Legal Infrastructure and Government Effectiveness Matter”EJIL 25/2014, 205.

[17] See critical observations about counter-measures in J. J. Jackson, “International Law Status of WTO Dispute Settlement Reports: Obligation to Comply or Option to ‘Buy-Out’?” AJIL 98/2004, 109−123.

2 thoughts on “International Law Coupled with Rule of Law

  • Nov 15, 2020 at 12:19 am
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    I need your notes in my email coz they are educative.

    Reply
    • Nov 15, 2020 at 12:23 am
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      You can convert the content into pdf form. An option is there below the title of the content

      Reply

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