The international rule of law

ABSTRACT

The rule of law is a moral ideal that protects distinctive legal values such as generality, equality before the law, the independence of courts, and due process rights. I argue that one of the main goals of an international rule of the law is the protection of individual and state autonomy from the arbitrary interference of international institutions, and that the best way to codify this protection is through constitutional rules restraining the reach of international law into the internal affairs of a state. State autonomy does not have any intrinsic value or moral status of its own. Its value is derivative, resulting from the role it plays as the most efficient means of protecting autonomy for individuals and groups. Therefore, the goal of protecting state autonomy form the encroachment of international law will have to be constrained by, and balanced against the more fundamental goal of an international rule of law, the protection of the autonomy of individual persons, best realized through the entrenchment of basic human rights.

KEYWORDS:

• International rule of law
• human rights
• state autonomy
• Jeremy Waldron
• legality
• state consent
• Kadi

Acknowledgments

I wish to thank the two anonymous referees for their comments. I also thank Cord Schmelzle for the invitation to present this paper at the Justitia Amplificata conference ‘Legitimacy Beyond the State: Normative and Conceptual Questions’ in Bad Homburg in January 2017, as well as to all the participants for thoughtful questions and suggestions. Thanks are due to Patrick Taylor Smith for the invitation to present the paper to the ‘Global Rule of Law’ conference in Singapore in February 2017, and to Terry Nardin for his criticism and advice. The other participants in the conference inspired me with a great set of papers. Additionally, I have benefitted from feedback from the audience at the European Consortium for Political Research conference in Oslo, Norway in September 2017.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. I thank Terry Nardin for this point.

2. For example, the party appoints key members of courts or is able to veto appointments (Peerenboom, 2002, p. 8).

3. The Rule of Law Index https://worldjusticeproject.org/our-work/wjp-rule-law-index/wjp-rule-law-index-2016 (accessed 24 September 2017) is a project of the non-profit World Justice Project, set up by the American Bar association with support from the International Bar Association and other groups.

4. Even under treaty law, state members of the same treaty do not have the same obligations. The practice of reservations allows states to opt out of certain provisions of a treaty. In customary international law, persistent objectors are states who explicitly and repeatedly claim an exemption from a generally accepted customary rule.

5. Consider also the United States during its westward expansion. New territories, although formally under the jurisdiction of federal law, had weak law, applied unevenly, with courts which were few and far between, under-resourced, and there was little if any supervision of legal officials. See (Kenyon, 1968, pp. 682–83). International law today shares many of these characteristics.

6. Anthony Anghie conference presentation, The Global Rule of Law, Singapore, February, 2017.

Additional information

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Carmen E. Pavel

Carmen E. Pavel is a Senior Lecturer in International Politics in the Department of Political Economy at King’s College London. She specializes in political philosophy and the history of political thought. Her interests include liberal theory and contemporary challenges to it, ethics and public policy, international justice and the authority of international institutions, and environmental ethics. Her book Divided Sovereignty: International Institutions and the Limits of State Authority was published by Oxford University Press in 2015. She has published articles in Political Studies, Law and Philosophy, and Ratio Juris among others. Most recently she has edited The Oxford Handbook of Freedom (with David Schmidtz), published in 2018.