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The International Rule of Law: Law and the Limit of Politics

Published online by Cambridge University Press:  19 March 2014

Ian Hurd
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Extract

The international rule of law is often seen as a centerpiece of the modern international order. It is routinely reaffirmed by governments, international organizations, scholars, and activists, who credit it with reducing the recourse to war, preserving human rights, and constraining (albeit imperfectly) the pursuit of state self-interests. It is commonly seen as supplanting coercion and power politics with a framework of mutual interests that is cemented by state consent.

Type
Roundtable: The International Rule of Law
Information
Ethics & International Affairs , Volume 28 , Issue 1 , Spring 2014 , pp. 39 - 51
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2014 

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References

NOTES

1 An excellent exception is Chesterman, Simon, “An International Rule of Law?” American Journal of Comparative Law 56, no. 2 (2008), pp. 331–61CrossRefGoogle Scholar.

2 The concept, of course, cannot be specific with finality, and the ongoing debates center on whether substantive individual rights must be included in the definition, whether practice ever does or can live up to the ideal, and its relationship with political power. See respectively Bingham, Tom, The Rule of Law (London: Penguin, 2010)Google Scholar, esp. ch. 7; Palombella, Gianluigi, “The Rule of Law and its Core,” in Palombella and Walker, Neil, eds., Relocating the Rule of Law (Portland, Ore.: Hart, 2009)Google Scholar; and the essays in Lazarus-Black, Mindie and Hirsch, Susan F., eds., Contested States: Law, Hegemony and Resistance (New York: Routledge, 1994)Google Scholar.

3 Chesterman, “An International Rule of Law?,” p. 336.

4 For instance, Tamanaha, Brian, “A Concise Guide to the Rule of Law,” in Palombella and Walker, Relocating the Rule of LawGoogle Scholar.

5 Raz, Joseph, “The Rule of Law and its Virtue,” ch. 11 in The Authority of Law: Essays on Law and Morality (Oxford: Oxford University Press, 1979)CrossRefGoogle Scholar: cited in Beaulac, Stéphane, “The Rule of Law in International Law Today,” in Palombella and Walker, Relocating the Rule of Law, p. 203Google Scholar. See also Hayek, Friedrich, who said “the laws must be general, equal, and certain,” in The Political Ideal of the Rule of Law (Cairo: National Bank of Egypt, 1955)Google Scholar, p. 34 cited in Beaulac, “The Rule of Law in International Law Today,” in Palombella and Walker, Relocating the Rule of Law, p. 202Google Scholar.

6 Uitz, Renáta, “The Rule of Law in Post-Communist Constitutional Jurisprudence,” in Palombella and Walker, Relocating the Rule of Law, p. 82Google Scholar.

7 This judgment from 1927 centered on whether Turkey could prosecute the French crew of a French ship for a collision on the high seas with a Turkish ship. It is remembered today mainly for its paradigmatic statement regarding the free will of sovereign states. The “Lotus principle” says that, in the absence of a clear legal prohibition, the acts of states are presumptively legal under international law. The Case of the S.S. “Lotus” (France v. Turkey), “Judgment of 7 September 1927,” PCIJ Series A, no. 10, at p. 18.

8 This is nuanced by rules that permit some species or some geography for commercial hunting. See the International Convention on the Regulation of Whaling (1946) and its Schedule as amended.

9 For a nuanced examination of the controversies over the obligation to comply, see Brunnée, Jutta and Toope, Stephen J., Legitimacy and Legality in International Law: An Interactional Account (New York: Cambridge University Press, 2010)CrossRefGoogle Scholar.

10 Madeleine Albright, “International Economic Leadership: Keeping America on the Right Track for the Twenty-First Century” (address before the Institute for International Economics, Washington, D.C., September 18, 1997), www.iie.com/publications/papers/paper.cfm?ResearchID=290.

11 Teitel, Ruti, Humanity's Law (New York: Oxford University Press, 2011)CrossRefGoogle Scholar.

12 Oona A. Hathaway and Scott J. Shapiro, “On Syria, a U.N. Vote Isn't Optional,” New York Times, September 3, 2013.

13 Paul Johnson, “Laying Down the Law,” Wall Street Journal, March 10, 1999.

14 Orakhelashvili, Alexander, The Interpretation of Acts and Rules in Public International Law (New York: Oxford University Press, 2008), p. 286CrossRefGoogle Scholar. “Interpretation,” he says, “must be able to lead to a concrete and conclusive outcome” (ibid., p. 287).

15 Johnstone, Ian, The Power of Deliberation: International Law, Politics and Organizations (New York: Oxford University Press, 2011)CrossRefGoogle Scholar.

16 Habermas, Jürgen, The Divided West (Cambridge, UK: Polity, 2006), p. 116Google Scholar: cited by Teitel, Ruti in “Humanity Law: A New Interpretive Lens,” Fordham Law Review 77, no. 2 (2008), p. 668Google Scholar. Teitel herself says “law offers a transnational normative language.” Teitel, Humanity's Law, p. 200.

17 Kennedy, David, “A New World Order: Yesterday, Today, and Tomorrow,” Transnational Law and Contemporary Problems 4 (1994), p. 335Google Scholar. Emphasis in original.

18 Howse, Robert and Teitel, Ruti, “Beyond Compliance: Rethinking Why International Law Matters,” Global Policy 1 (2010)CrossRefGoogle Scholar. See also Kingsbury, Benedict, “The Concept of Compliance as a Function of Competing Conceptions of International Law,” Michigan Journal of International Law 19 (1998), pp. 345–72Google Scholar.

19 Morrow, James, “When Do States Follow the Laws of War?” American Political Science Review 101, no. 3 (2007), p. 562CrossRefGoogle Scholar cited in Martin, Lisa L., “Against Compliance,” in Dunoff, Jeffrey L. and Pollack, Mark A., eds., Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge: Cambridge University Press, 2013), p. 597Google Scholar.

20 Simmons, Beth A., Mobilizing for Human Rights: International Law in Domestic Politics (New York: Cambridge University Press, 2009)CrossRefGoogle Scholar cited in Martin, Lisa L., “Against Compliance,” in Dunoff, Jeffrey L. and Pollack, Mark A., eds., Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge: Cambridge University Press, 2013), p. 593Google Scholar.

21 Martin, Lisa L., “Against Compliance,” in Dunoff, Jeffrey L. and Pollack, Mark A., eds., Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge: Cambridge University Press, 2013).Google Scholar

22 D'Amato, Anthony, The Concept of Custom in International Law (Ithaca, N.Y.: Cornell University Press, 1971)Google Scholar.

23 For instance, Franck, Thomas, “What, Eat the Cabin Boy? Uses of Force that are Illegal but Justifiable,” in Franck, Recourse to Force: State Action Against Threats and Armed Attacks (Cambridge: Cambridge University Press, 2002)CrossRefGoogle Scholar.

24 On change to Article 2(4), see Franck, “Who Killed Article 2(4)?” American Journal of International Law 64, no. 5 (1970)Google ScholarPubMed.

25 On withdrawal, see Helfer, Laurence R., “Terminating Treaties,” in Hollis, Duncan, ed., The Oxford Guide to Treaties (Oxford: Oxford University Press, 2012)Google Scholar. On “constructive noncompliance,” see Hurd, Ian, “The UN Security Council and the International Rule of Law,” Chinese Journal of International Politics forthcoming (2014), pp. 1–19Google Scholar; and in relation to changing laws of humanitarian intervention, see Hurd, “Bomb Syria, Even if It Is Illegal,” New York Times, August 28, 2013.

26 Kennedy, David, The Dark Sides of Virtue (Princeton, N.J.: Princeton University Press, 2004)CrossRefGoogle Scholar. Also Asad, Talal, “Thinking about Terrorism and Just War,” Cambridge Review of International Affairs 23, no. 1 (2010)CrossRefGoogle Scholar.

27 Orakhelashvili, The Interpretation of Acts and Rules, p. 288.

28 See the excellent discussion in Orakhelashvili, The Interpretation of Acts and Rules.

29 Statement of April 30, 1959: cited in Bishop, William W., “The International Rule of Law,” Michigan Law Review 59 (1961), p. 555CrossRefGoogle Scholar.

30 Bishop, “The International Rule of Law,” p. 553.

31 Ikenberry, John, Liberal Leviathan: The Origins, Crisis, and Transformation of the American World Order (Princeton, N.J.: Princeton University Press, 2012), p. 15Google Scholar.

32 See Samuel Moyn, “Soft Sells: On Liberal Internationalism,” The Nation, October 3, 2011.

33 Schachter, Oscar, “Dag Hammarskjold and the Relation of Law to Politics,” American Journal of International Law 56, no. 1 (1962), p. 6CrossRefGoogle Scholar.

34 Hammarskjold's use of law owes much to Schachter himself, who served as his legal advisor. Kofi Annan said in 2003 that “Professor Schachter did more than any other official of the United Nations to help shape the rule of law.” Cited in Wolfgang Saxon, “Oscar Schachter, 88, Law Professor and U.N. Aide,” New York Times, December 17, 2003.

35 Barack Obama, “Remarks by the President in Address to the Nation on Syria,” The White House, Office of the Press Secretary, September 10, 2013, www.whitehouse.gov/the-press-office/2013/09/10/remarks-president-address-nation-syria.

36 Brierly, J. L., The Basis of Obligation in International Law, and other papers (Oxford: Clarendon Press, 1958)Google Scholar, cited in: Orakhelashvili, The Interpretation of Acts and Rules, p. 15.

37 The group says that it performs “a law enforcement role as provided by the United Nations World Charter for Nature.” Sea Shepherd website, “Mandate,” accessed November 15, 2013, www.seashepherd.org/who-we-are/mandate.html.

38 Harcourt, Bernard, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Cambridge, Mass.: Harvard University Press, 2011), p. 25. Emphasis removedGoogle Scholar.

39 Hayek, quoted by Bernard Harcourt, The Illusion of Free Markets, p. 129.