The Rule of Law as a Vehicle for Intervention

Abstract

Until recently, the concept of the ‘rule of law' (ROL) was exclusively used in relation to the domestic legal order of the state. Over the last two decades, however, it has entered the vocabulary of international legal scholars and experts. This journey of ROL from the domestic to the international sphere has provoked fierce debates between practitioners of international law, notably because, far from being a mere doctrinal controversy, it gave rise to practices impinging on the exercise of power at the international level and enabling diverse international experts to interfere in internal affairs of target states. This article argues that, in a somewhat paradoxical way, these developments impair the concept of ROL rather than expanding it into new domains. Indeed, while the established concept of ROL to a certain extent presupposed the principles of sovereignty and non-intervention, current reformulations of ROL weaken them while making new interventionist practices easier. Analysis of the legal rationalizations used in the context of contemporary EU and UN crisis management operations makes this clear. Drawing on insights gained from legal theory and international political sociology, this article highlights how the concept of ROL cannot simply be transposed into the ‘international' realm without hampering its internal coherence.

Keywords:

• international law
• Ivory Coast
• international legal experts
• global administrative law
• civil liberties
• legal theory
• European Union
• ex-Yugoslavia
• UN

Disclosure Statement

No potential conflict of interest was reported by the author.

Notes on Contributor

Barbara Delcourt is Professor of International Relations at the Faculty of Social and Political Sciences at the Université libre de Bruxelles (ULB). She is currently the Director of its research unit in international politics (REPI). She is also an active member of the center of international law (CDI) and of the Institute for European Studies (IEE). Her main research focuses on security studies, the international administration of territories and political uses of international legal norms. She has authored several books and articles on the role of the European Union in crisis management.

Notes

1 See also the interesting insights about the appearance of the term in The Economist, provided by May (2014, xx–xxi).

2 The Paris Charter is not a Treaty; it contains provisions similar to international legal instruments and political principles. The reference to this document can be explained by the fact that it refers to ROL but it does not create per se a new obligation bearing upon states.

3 Accessed May 10, 2014. http://www.un.org/en/peacekeeping/missions/unoci/elections.shtmlhttp://www.un.org/en/peacekeeping/missions/unoci/elections.shtml

4 Accessed May 10, 2014. http://www.un.org/apps/news/story.asp?NewsID=42973#.U8VL-ZR_vTohttp://www.un.org/apps/news/story.asp?NewsID=42973#.U8VL-ZR_vTo

5 In the United States, ROL is an argument frequently utilized to criticize New Deal policies or, more recent public policies which are seen as the products of the ‘rule of lawyers’. As reminded by Humphreys (2010), when Dicey elaborated his ROL doctrine, he contrasted it with the notion of ‘administrative state' or ‘regulator state'. Later on, Hayek opposed ROL to ‘planning state' and underlined the necessary intervention of the state for the sake of competition and free market.

6 As acknowledged in the opinion, not all the standards are legally binding (Venice Commission 2005, 5).