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Rule of Law in Internaional Legal Scenario

The rule of law is undoubtedly one of the most powerful expressions and an often repeated political ideal in contemporary global discourse. A government that abides by the rule of law is seen as good and worthy of respect in the modern world. The concept of rule of law is based on the idea that governance of a state is carried out not by the rulers or nominated representatives of people but by the law.

The Rule of law is the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a non arbitrary form of government, and more generally prevents the arbitrary use of power.[1] The principle ideas about rule of law have been central to political and legal thought since the ancient times. Aristotle distinguished the rule of law from that of any individual. In the 18th century the French political philosopher Montesquieu elaborated a doctrine of the rule of law that contrasted the legitimate authority of monarchs with the caprice of despots.

The concept of rule of law has been greatly influenced by the Western Liberal thought. Dicey had also explained his ideas about rule of law and has given certain basic principles on this concept which have been widely accepted by the states throughout the world. Considering the present scenario, almost all the states follow the idea of rule of law while implementing their domestic legal framework.

In many countries like India, the principles of rule of law are brought into effect through the provisions embedded in their Constitution. Because of the effect of the world transforming into a global village the rule of law has outgrown the limits of national law and the national borders. In the recent decades, the rule of law has become an important component of the international legal order. The internationalization of the rule of law has gained a wide spectrum of applications ranging from its promotion through a variety of international organizations to attempts of implementing it as a legal ideology for international law as such.

According to United Nations (UN) system, the rule of law is fundamental to international peace and security and political stability; to achieve economic and social progress and development and to protect people’s rights and fundamental freedoms. The rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.

In this article, we will discuss about the international legal scenario of the rule of law along with a study of views of various jurists on the concept of rule of law. It will also include the study about the expansion of rule of law from domestic to international legal order and the challenges against the application of rule of law principles at a global level.

History of Rule of Law
The term Rule of Law is derived from the French phrase La Principe de Legality (the principle of legality) which refers to a government based on principles of law and not of men. The Rule of Law has its origins in ancient Greece. The argument about rule of law starts in the philosophy of Aristotle, a Greek scholar.

It proceeds in the early modern period with the thoughts of John Locke and Montesquieu during the European enlightenment. British jurist, A.V. Dicey further popularized the idea and many of his principles accepted till now. The concept of rule of law has also been discussed in the writings of many American philosophers such as Lon Fuller, Ronald Dworkin and John Rawls. A brief overview about the ideas of these jurists about rule of law is discussed as under.

Aristotle
In his book Politics, Aristotle has discussed politics as a practical science and has described the role that politics and the political community must play in bringing about the virtuous life in the citizenry. Though he did not approach rule of law directly, he formulated a question whether it was better to be ruled by the best man or the best laws. According to him the governance was dependent not only upon the type of law being considered but also on the type of regime that enacted and administered that law. Aristotle said that for preventing the tyranny of absolute monarchy it is preferable for the law to rule rather than any one of its citizens.

Aristotle did maintain that law as such had certain advantages as a mode of governance. Laws are laid down in general terms, well in advance of the particular cases to which they may be applied. Moreover, laws are made after long consideration, whereas decisions in the courts are given at short notice, which makes it hard for those who try the case to satisfy the claims of justice. (Rhetoric 1354b) He follows the notion of subjection of rulers to law- the idea of a ‘government of laws and not of men’.[2] The distinction between legislative, executive, and judicial functions is also found in Aristotle’s work. The idea of rule of law can be thus found in Aristotle’s work, though not in very expressions.

John Locke
John Locke in his second from Two Treatises of Government argues for the rule of law as just and rightful politics, not only in the fundamental legislation that is the constitution but also in regular governance by the legislature. Locke emphasized the importance of governance through established standing Laws, promulgated and known to the People.[3]

He wrote that freedom in society means being subject only to laws made by a legislature that apply to everyone, with a person being otherwise free from both governmental and private restrictions upon liberty. He also gave substantive principles with respect to private property and also insisted that positive law is subject to substantial constraint which further added controversies to administration on these lines with regard to ownership of property. Locke also advocated separation of powers by government and believed that revolution is not only a right but an obligation in certain circumstances. These ideas would come to have profound influence on the Declaration of Independence and the constitution of USA.

Montesquieu
The principle of rule of law has also been discussed by Montesquieu in his Spirit of Laws. His work in connection with rule of law is best known for his emphasis on separation of powers in a state. Montesquieu shares with Aristotle the common notion for distribution of powers but unlike Aristotle’s political approach Montesquieu has considered it under the values of legalism.

Whatever types of power are exercised by a state, each type must be distributed or its exercise will be liable to corruption. By ‘corruption’ he understands a lack not just of honesty but of integrity and, indeed, of strength. According to him, the distribution of power is matter of principle, but how such power is distributed is a matter of circumstances. He also explained his ideas about political liberty in his Notes on England and Spirit of Laws.

But he means a liberty in which the aristocracy and the bourgeoisie will be free from oppression by a despotic monarch, free from conflict with each other and free from overthrow by the rabble.

Dicey
The firm base of Rule of Law owes its exposition to Albert Venn Dicey. Dicey proposed that key to rule of law is legal equality. In his book The Law of Constitution, Dicey has written that no man that no man is punishable or can be lawfully made to suffer in body or goods except for distinct breach of law. He gave three principles for rule of law i.e., absolute supremacy of law, equality before law and predominance of legal spirit.

Under Dicey’s rule of law is impartial and no distinction is made between rich and poor or majority and minority, justice is equally served to one and all. It rejects all kinds of arbitrary exercise of powers at the hands of government or its officials. The legal spirit is seen in customs, conventions and judicial decisions.

Although rule of law by Dicey has been quite popular across the globe it has faced certain criticisms about its applicability to public officials who are governed by special regulatory laws and often enjoy certain privileges. But still many sovereign states have incorporated the concept of rule of law into their constitution on the basis of principles of rule of law given by Dicey.

Fuller
Lon Fuller believed that government in accordance with the forms and procedures of law had a distinctive value that could help close the gap of separation between positive law, on the one hand, and morality and justice on the other. Rule of Laws are Procedural Standards. Fuller did not aim to produce a morality of law on the basis of a general moral theory in keeping with the ancient natural law traditions. He explained the moral content in the idea of the rule of law means governance by rules and judicial institutions as opposed to other sorts of political decision-making or ordering.[4]

The authority of law is derived from a moral understanding between rules and that those are ruled. Citizens give moral respect to the Constitution which is legitimate and it is necessarily as a right and good thing. In his 1964 book The Morality of Law, Fuller formulated principles for what he denoted as the inner morality of law

Principles requiring that laws be general, public, prospective, coherent, clear, stable, and practicable—and argued that these principles were indispensable to law-making.

Fuller’s work on the Rule of Law had one last nuance. He understood that law constituted a distinct kind of governance that might not be relevant for every task of the state. He contrasted it not just with a Nazi-style reign of terror, but with the sort of managerial administration that might be necessary for an allocated decision-making in a mixed economy like the United States in the 1960s.

Rule of Law in Modern Sense
Rule of law is a dynamic concept and cannot be expected to be governed by same fixed principles throughout the changing times. The principles given by Dicey governing his theory of rule of law cannot be applied in their totality to the prevailing circumstances of the present world. The modern concept of the rule of law is fairly wide and therefore sets up an ideal for any government to achieve.[5] The concept of Rule of Law was discussed at the International Commission of Jurists which met in 1959 at New Delhi and is also known as Delhi Declaration, 1959. The theme was Rule of Law in Free Society.

According to this formulation:
The rule of law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld. This dignity requires not only the recognition of certain civil or political rights but also creation of certain political, social, economical, educational and cultural conditions which are essential to the full development of his personality.[6] From the major findings of the Delhi.

Declaration following principles of rule of law can be derived:
  1. To safeguard and advance the political and civil rights of the individual in a free society
  2. To establish social, economic, educational and cultural conditions under which the individual may realize his legitimate aspirations and dignity.
  3. It should not interfere with the religious belief and should not restrict freedom of speech or freedom of person.
  4. No discrimination on minority groups.
  5. Adequate safe guards against abuse of power by the executives.
  6. There should be an independent judiciary with security of tenure free from legislative and executive interference.
  7. A functional, impartial and independent judiciary.

So it can be said that rule of law cannot be any law passed by the government. It is a rational set of rules keeping in mind the above principles passed after adequate debate and discussion of the law making body of that state. Laws should be enforced equally and consistently, adhering also to international human rights principles. The Rule of Law provides modern societies with stability and a clear system for resolving conflicts between citizens within a community of any size.[7]

Application of Rule of Law Beyond National States
The roots for the application of the principle of the Rule of Law to interstate relationships within international society, as pointed out by professor Koskenniemi, could date back to the XVIII century.[8] It has now come around that rule of law not only protects the individuals from the arbitrariness of government but also from other individuals at national level and also from other nation states at international level. There are several spheres such as economy, environment, security, etc where the actions of individuals in one state can affect the subjects of other nations.

States act as the agents of their citizens and there are many direct or indirect interactions among two or more states which are regulated by the international law. These interactions have an impact on the subjects of states party to it which can be either good or bad. Thus, it would not be wrong to say that rule of law as an exclusively national concept is not sufficient to guard individual freedom and well being and has to be brought in the international legal order. The States power submission to the law, in the international practice, has been an object of constant attention during the past decades.

Looking into the institutional framework of United Nations, one gets to know that the principle of Rule of Law has been a fundamental part in the contents of particular resolutions that have been adopted within the General Assembly.[9] Also, it has played an important role on several reports that the Secretary-General has presented to that Organization’s General Assembly.

The international version of the Rule of Law acts as a break to the arbitrary exercise of States power –both at national and international level. On one side the international law limits the external sovereignty of States by means of a group of legal norms that restrict certain acts which a State can execute against another or against the general interests of the international community of the States as a whole.

While on the other hand, it limits the internal sovereignty of States by means of several legal dispositions that circumscribe the exercise of States’ power over their nationals –or any other person under their jurisdiction– with respect to certain fundamental rights. The legal instruments for the international protection of human rights and other conventions which prohibit the use of force in international relations have the quality of jus cogens norm and thus are an example of reasonable limits on the sovereignty of the states. The international version of the Rule of Law would keep the order and would coordinate the behavior of the States and other subjects of international law.

That is, the international version of the Rule of Law would increase the security, contributing for the relationships established among different subjects of international law to be more foreseeable and stable. By making international relations more foreseeable, the discretion would be restricted and, therefore, the arbitrariness of the States would be reduced, thus favoring the existence of a more stable international order and relations. The General Assembly of United Nations have also externalized some structural elements of domestic rule of law and applied to international relations itself.

United Nations and Rule of Law
The United Nations was established in 1945 to maintain peace and order in the social world. It was created to stand on three pillars i.e. international peace and security, human rights and development.[10] According to United Nations the opportunities and challenges brought it by the complexities of the social, political and economic transformations of the society must be given a collective response guided by the rule of law as it is the foundation of friendly and equitable relations between states and the base of fairs societies.[11]

For the United Nations (UN) system, the rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.

It requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency. The rule of law is a fundamental requirement for achieving the societal goals of international peace and security and political stability; achieving economic and social progress and development and protecting people’s rights and fundamental freedoms. It is foundational to people’s access to public services, curbing corruption, restraining the abuse of power, and to establishing the social contract between people and the state.

The United Nations General Assembly passed a resolution 61/39, :
The rule of law at national and international levels in 2006.[12] With this regard, resolution 61/39 acted as a the precedent from which the General Assembly of the United Nations began to study the principle of the Rule of Law in a broadly international perspective. In resolution 61/39, the General Assembly of the United Nations introduced for the first time into the practice of the Organization, a specific distinction between the Rule of Law domestically and the Rule of Law internationally or it can be said that it applied the rule of law to the field of international relations.

In the preamble of the Resolution 61/39, the General Assembly of the United Nations highlighted the promotion of the Rule of Law as a cross-cutting element to the maintenance of peace and international security, the realization of sustained economic growth, sustainable development, the eradication of poverty and hunger and the protection of all human rights and fundamental freedoms. Similarly, the General Assembly pointed out that human rights, the Rule of Law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the Organization.

In order to sum up, through the adoption of resolution 61/39, the United Nations launched the machinery to try to establish the meaning and scope of the Rule of Law at international level. From the precedent set by resolution 61/39, resolutions 62/70, 63/128, 64/116, 65/321, 66/102, 67/97, 68/116, 69/123, 70/118 and 71/148 have been further approved within the General Assembly of United Nations that are also entitled the Rule of Law at national and international levels.

Presently, UN holds that Rule of law and development are strongly interlinked, and strengthened rule of law-based society should be considered as an outcome of the 2030 Agenda and Sustainable Development Goals (SDGs). In particular, Goal 16 is an enabling goal for Member States to generate national-level policy changes that advance progress on other SDGs. The development of inclusive and accountable justice systems and rule of law reforms will provide quality services to people and build trust in the legitimacy of their government.

This approach should respond to the needs of individuals and groups and their meaningfully participation from the outset, paying particular attention to those historically marginalized and at risk of being left behind. It includes prevention of serious violations of human rights, achieving credible accountability for those responsible at national and international levels and empowering individuals and communities to make use of justice mechanisms to protect their fundamental human rights.

The rule of law is an important component of sustaining peace, as advanced by the General Assembly and Security Council in the twin resolutions on the review of the peace building architecture. Sustaining peace requires an integrated and comprehensive approach across the UN system, based on coherence between political, security, development, human rights, gender equality and rule of law activities in support of Member State-led efforts.

Considering the advanced structure of the world community the problems against Rule of law include certain emerging and critical issues such as the proliferation of hate speech and incitement to violence; preventing radicalization/violent extremism; climate change and the environment impacting on the security and livelihoods of people; and the complexities of artificial intelligence and cybercrime.

International Legal Scenario and the Problems
The international rule of law among the nations as a general principle is still at an early stage of its development. Some authors believe that the structural differences that exist between domestic and international legal orders represent a great obstacle for the construction of a Rule of Law theory in the international realm. However, the structural differences between national and international legal order do generates certain skepticism about the internationalization of rule of law.

Such differences can be reflected from the vertical relation which exists between the states and who they govern at the national level and the horizontal form of international social environment among the sovereign states. There is no existence of any central government, neither a compulsory judiciary nor executive power. Likewise, there is an imminent political nature for the solution of international disputes and lack of compulsory jurisdiction of International Court of Justice.

All this brings a great reluctance towards the implementation of rule of law in the global legal order. Attempts for the establishment of a world compulsory arbitration, inspired by a desire to secure principle of law in international relations[13] failed at The Hague Peace Conferences in 1899 and 1907 and judicial means of dispute settlements have remained the matter of disposition of States. As it is still considered to be in early stage there have been certain developments in the favor of international scenario of rule of law.

The possibilities of compulsory judicial determination may vary from one field of world region. The international trade regime, which functions in the framework of the WTO, includes a compulsory dispute settlement mechanism. The international trade regime, which functions in the framework of the World Trade Organization (WTO), includes a compulsory dispute settlement mechanism.

The supreme convention regulating the sea related issues i.e. the UN Convention on Law of Sea[14] (UNCLOS) includes compulsory judicial mechanisms for dispute settlement. At the regional level, a distinguished example is the European Convention on Human Rights. All 47 Members of the Council of Europe are Parties to the European Convention on Human Rights and, as such, accept compulsory jurisdiction of the European Court of Human Rights.

The absence of a world compulsory mechanism for dispute resolution is not in favor of the ROL, though not an inherent deficiency of international legal order, rather the failure of States. Also, though there is no world government but the United Nations Security Council can intervene in the matters of human rights of its member countries. International human rights law is dedicated to the most important relationships between a State and individuals under its jurisdiction, which make a substance of the Rule of Law. By the establishment of minimal standards of human rights, that branch of international law secures a worldwide minimum of the Rule of Law. On the other hand, by developing standards on the right of fair trial or the right to effective remedy, or by establishing standards which internal law has to meet, to be recognized as legally appropriate limits of the human rights, international human rights law directly improves the Rule of law.

Conclusion
Even after years of discussions there have not been derived an exact definition of rule of law among nations which can be commonly accepted by all the states at international level. The attempt to reach a definition that can be commonly accepted by all States which is leaded in the heart of the International Organization by the Secretary-General and the General Assembly, has been hampered by the lack of consensus around the scope and meaning of this principle at international level.

However, the practice of the General Assembly concerning the invocation and employment of the principle of the Rule of Law among nations is clear that in speaking of this concept would have been externalized to the international level some structural elements of the domestic Rule of Law from the only explicit definition of this principle that exists within the Organization practice (which was created by the Secretary-General in the field of post-conflict societies).

In that sense, the five basic elements of the Rule of Law externalized –mutatis mutandis– to the international realm in the framework of the Rule of Law among nations principle would be: an international order based on law; the uniformity of application of international law to all subjects equally; the prevention of the arbitrary exercise of power of States; the independent and effective implementation of rules of international law; and the compatibility of rules of international law with the principle of inherent dignity of human being.

On the foregoing, one can conclude that these five basic elements would capture the essence of the Rule of Law among nations principle that United Nations has projected towards international realm supplementing the International Rule of Law.

End Notes
  1. Choi, Naomi, Rule of law, Encyclopedia Britannica, 27 August 2019, available at https://www.britannica.com/topic/rule-of-law
  2. Iain Stewart, Men of Class: Aristotle, Montesquieu and Dicey on ‘Separation of Powers’ and ‘Rule of Law’, Macquarie Law Journal, [2004] Mq LJ 9 available at http://www5.austlii.edu.au/au/journals/MqLJ/2004/9.html
  3. Waldron, Jeremy, The Rule of Law", The Stanford Encyclopedia of Philosophy, Summer 2020 Edition, Edward N. Zalta (ed.), available at https://plato.stanford.edu/archives/sum2020/entries/rule-of-law/
  4. Anessha Kar Gupta, Lon Fuller’s Rule of Law, November 2019, available at https://www.researchgate.net/publication/337402791
  5. Origin And Concept Of Rule Of Law'’, 23rd July 2019, available at https://www.lawteacher.net/free-law-essays/administrative-law/origin-and-concept-of-rule-of-law-administrative-law-essay.php?vref=1
  6. The Rule of Law in Free Society, A Report on the International Congress of Jurists, New Delhi, India, 5th January 1959
  7. Rule of Law, Encyclopedic Entry, available at https://www.nationalgeographic.org/encyclopedia/rule-law/
  8. Martti Koskenniemi, The Politics of International Law, European Journal of International Law, vol. 1, 1990, p 4
  9. International Rule of Law or Rule of Law among the Nations, The General Assembly of UN and the Rule of Law, César Villegas Delgado, Vol. 7, 02. July - December 2016, Colombia
  10. What is Rule of Law, available at https://www.un.org/ruleoflaw/what-is-the-rule-of-law/
  11. Ibid
  12. Resolution adopted by the General Assembly, 61/39, Rule of law at national and international levels, 18th December 2006, A/RES/61/39
  13. W. I. Hull, Obligatory Arbitration and The Hague Conferences, AJIL 2/1908, 731. 3
  14. United Nations Convention on the Law of the Sea, 10 December 1982, available at https://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm

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