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DEFINING THE INTERNATIONAL RULE OF LAW: DEFYING GRAVITY?

Published online by Cambridge University Press:  18 February 2016

Robert McCorquodale
Robert McCorquodale*
Affiliation:
Director, British Institute of International and Comparative Law, Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London, [email protected].
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Abstract

This article aims to offer a definition of the international rule of law. It does this through clarifying the core objectives of a rule of law and examining whether the international system could include them. It demonstrates that there can be a definition of the international rule of law that can be applied to the international system. This definition of the international rule of law is not dependent on a simplistic application of a national rule of law, as it takes into account the significant differences between national and international legal systems. It seeks to show that the international rule of law is relative, rather than absolute, in its application, is not tied to the operation of the substance of international law itself, and it can apply to states, international organizations and non-state actors. It goes further to show that the international rule of law does exist and can be applied internationally, even if it is not yet fully actualized.

Keywords

definitioninternational lawinternational legal systeminternational rule of lawrule of lawStatesUnited Nations
Type
Articles
Information
International & Comparative Law Quarterly , Volume 65 , Issue 2 , April 2016 , pp. 277 - 304
Copyright
Copyright © British Institute of International and Comparative Law 2016 

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References

1 Secretary-General of the United Nations (UN), UN General Assembly, 67th session, Agenda Item 83, High-Level Meeting on the Rule of Law at the National and International Levels, UN Doc A/67/PV.3 at 2.

2 See eg I Newton, Philosophiæ Naturalis Principia Mathematica (1687) and, more recently, M Sands, R Feynman and R Leighton, The Feynman Lectures on Physics: Volume I (2013) available at <http://www.feynmanlectures.caltech.edu/I_07.html>.

3 The definition of gravity is still debated, and there are definitions of gravity within quantum mechanics and also a distinct concept of quantum gravity.

4 See eg Franck, T, ‘Legitimacy in the International System’ 82 AJIL (1988) 705, 706Google Scholar, who considered that the legitimacy of rules exerts a ‘compliance pull’ on governments which presses towards compliance with international law; see also J Brunnée and S Toope, Legitimacy and Legality in International Law: An Interactional Account (CUP 2010).

5 See ‘Defying Gravity’ from the musical Wicked: The Untold Story of the Witches of Oz (2003) Music and Lyrics by S Schwartz, which include the lyrics: ‘I'm defying gravity and you can't pull me down’.

6 Declaration on the Rule of Law at the National and International Levels 2012 made at the High-Level Meeting on the Rule of Law at the National and International Levels (n 1).

7 ibid.

8 See eg T Gemkow and M Zurn, ‘Constraining International Authority through the Rule of Law: Legitimatory Potential and Political Dynamics’ in M Zurn, A Nollkaemper and R Peerenboom (eds), Rule of Law Dynamics in an Era of International and Transnational Governance (CUP 2012) 69, who note that having an international rule of law would contribute to the (otherwise lacking) legitimation of international institutions.

9 M Koskenniemi, The Politics of International Law (Hart 2011) 36.

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12 A Dicey, An Introduction to the Study of the Law of the Constitution (Macmillan 1885) Pt II. See also J Jowell, ‘The Rule of Law’ in J Jowell and D Oliver (eds), The Changing Constitution (8th edn, OUP 2015).

13 See eg H Kelsen, Pure Theory of Law (2nd edn, University of California Press 1970) and P Costa and D Zolo (eds), The Rule of Law: History, Theory and Criticism (Springer 2007).

14 See N Brown, The Rule of Law in the Arab World: Courts in Egypt and the Gulf (CUP 1997).

15 D Fairgrieve, ‘Etat De Droit and Rule of Law: Comparing Concepts’ (2016, forthcoming) PL.

16 See Bassiouni, C and Badr, G, ‘The Shari'ah: Sources, Interpretation and Rule Making’ (2002) 1 UCLA Journal of Islamic and Near Eastern Law 135Google Scholar, who note that modern Arabic translates the ‘rule of law’ as siyadar alqanun, meaning a ‘sovereignty of law’. My experience in other states has been a variety of definitions, with, for example, the Russians often translating the rule of law as verkhovenstvo zakona, being ‘rule of the statutes’.

17 European Commission for Democracy through Law (Venice Commission), Report on the Rule of Law, adopted at its 86th plenary session (Venice, March 2011), <http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2011)003rev-e>.

18 ibid, para 41. In reaching this definition, they relied heavily on the work of Tom Bingham, referred to below.

19 T Bingham, The Rule of Law (Penguin 2010).

20 ibid, ch 3–10.

21 ibid 8.

22 L Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’, Jean Monnet Working Paper 04/09 (NYU 2009) 42.

23 Tamanaha, On the Rule of Law (n 11) 92. See also R Peerenboom, ‘Varieties of the Rule of Law’ in R Peerenboom (ed), Asian Discourses of Rule of Law (Routledge Curzon 2004) 5–6 and Charlesworth, H, ‘Comment’ 24 AdelLRev (2003) 13Google Scholar, who notes that the procedural definition contains some inherent assumptions about substance.

24 See L Fuller, The Morality of Law (Yale University Press 1964) esp ch 2.

25 J Raz, ‘The Rule of Law and its Virtue’ in J Raz, The Authority of Law: Essays on Law and Morality (Clarendon Press 1979) 210.

26 Jowell ‘The Rule of Law’ (n 12).

27 See the discussion in eg Tamanaha (n 11) and S Beaulac, ‘The Rule of Law in International Law Today’ (n 11) 201.

28 Waldron, J, ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law?’ (2011) 22 EJIL 315, 316–17Google Scholar.

29 Some would include democracy as part of the substantive approach to rule of law. However, democracy is only a procedure, in which unjust laws can be made, and is not part of the rule of law—see Bedner (n 11) 62.

30 R Dworkin, A Matter of Principle (Harvard University Press 1985) 11–12.

31 Venice Commission (n 17) para 53. Note also Bingham, The Rule of Law (n 19) 91–2: ‘[t]he right to a fair trial is a cardinal requirement of the rule of law … and that fairness means fairness to both sides … and independence of judicial decision-makers’. See also T Carothers, Promoting the Rule of Law Abroad (Carnegie Endowment for International Peace 2006) 4.

32 P Craig, Paper to the UK House of Lords Select Committee on the Constitution, 6th Report, 2007: <http://www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15115.htm#n183>, notes that ‘if we delve beneath the surface of phrases such as liberty and equality then significant differences of view become apparent even amongst those who subscribe to one version or another of liberal belief’. See also T Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (OUP 2003).

33 Bedner (n 11) 66.

34 Note the views of H Charlesworth, ‘Whose Rule? Women and the International Rule of Law’ in S Zifcak (ed), Globalisation and the Rule of Law (Routledge 2005) 83: the rule of law cannot be objective or determinate and it can ‘mask and even exacerbate the injustices to women’.

35 Declaration on the Rule of Law (n 6) (emphasis added).

36 Bingham, The Rule of Law (n 19) 66–7. He is quoting from Raz, The Authority of Law: Essays on Law and Morality (n 25) 221. See also the comment by the South African representative at the drafting of the Declaration on the Rule of Law, (n 6) at 6: ‘The rule of law constitutes the backbone for the legal protection of human rights. In addition, the rule of law itself must be grounded in human rights. Growing up in South Africa, I experienced how the apartheid regime created a veneer of a rule of law based on legislation that institutionalized injustice and procedures that embodied unfairness. My experience has shown me that rule of law without human rights is only an empty shell’.

37 Waldron (n 28) 322.

38 Barber, N, ‘The Rechtsstaat and the Rule of Law’ 53 University of Toronto Law Journal (2003) 443, 452Google Scholar.

39 Declaration on Principles of International Law Friendly Relations and Cooperation among states in accordance with the Charter of the United Nations, UN GAOR Res 2625 (XXV) (1970).

40 See eg Security Council Resolution 152 (2004) (concerning Haiti) and Security Council Resolution 1756 (2007) (concerning the Democratic Republic of Congo).

41 See eg Security Council Resolution 1599 (28 April 2005) para 3.

42 See eg Security Council Resolution 1483 (22 May 2003) para 5 and Security Council Resolution 1546 (8 June 2004) para 10.

43 J Farrall, United Nations Sanctions and the Rule of Law (CUP 2007) 22

44 World Bank, A Decade of Measuring the Quality of Governance (2006) 3.

45 UN Millennium Declaration 2000, UN Doc A/Res/55/2, para 7.

46 World Summit Outcome, A/RES/60/1 (24 October 2005) para 11.

47 UN Sustainable Development Goals 2015, included as the 2030 Agenda for Sustainable Development UN Doc A/69/L.85. Access to justice is also included as Goal 16 and Targets 8, 9 and 35.

48 UN Commission on Legal Empowerment of the Poor, Making the Law Work for Everyone (UNDP 2008).

49 Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc S/2004/616 (2004) para 6.

50 The UN has a Rule of Law Unit and a website on the rule of law: <http://www.unrol.org>.

51 See also the Statute of the Council of Europe 1949 where, in art 3, each Member state commits itself to accepting the rule of law.

52 See, though, Gathii, J, ‘Good Governance as a Counter Insurgency Agenda to Oppositional and Transformative Social Projects in International Law’ 5 Buffalo Human Rights Law Review (1999) 107, 121–2Google Scholar and A Angie, Imperialism, Sovereignty and the Making of International Law (CUP 2007) 313–14, who note that the use of ‘good governance’ can be used to serve the interests of the West and not of other states.

53 Declaration on the Rule of Law (n 6) paras 11, 13 and 34.

54 UN Millennium Declaration 2000, UN Doc A/Res/55/2 (emphasis added).

55 Report of the Secretary-General, ‘Strengthening and coordinating United Nations rule of law activities’, United Nations General Assembly Sixty-Eighth session, A/68/213.

56 Declaration on the Rule of Law (n 6) para 2.

57 ibid para 1 (emphasis added).

58 See eg Chesterman, S, ‘An International Rule of Law’ (2008) 56 AmJCompL 331Google Scholar and also Chesterman, S, ‘‘‘I'll Take Manhattan”: The International Rule of Law and the United Nations Security Council’ (2009) 1 HJRL 67Google Scholar, where he reasserts his earlier view.

59 S Chesterman, ‘An International Rule of Law’ (n 58) 331, 342.

60 Brooks, R, ‘Drones and the International Rule of Law’ 28 Ethics & International Affairs (2014) 83, 87Google Scholar, commenting on Chesterman's definition.

61 Chesterman (n 58) 333.

62 Besson, S, ‘Sovereignty, International Law and Democracy’ (2011) 22 EJIL 373, 385–6Google Scholar.

63 Chesterman, ‘“I'll Take Manhattan”: (n 58) 67, 68–9 (emphasis original).

64 Chesterman (n 58) 360.

65 Hurd, I, ‘The International Rule of Law: Law and the Limit of Politics’ (2014) 28 Ethics & International Affairs 39, 39Google Scholar.

66 Art 2(3) and art 33(1) UN Charter and the Statute of the International Court of Justice.

67 Declaration on the Rule of Law (n 6) para 2.

68 See S Pahuja, Decolonising International Law (CUP 2011) 213–33. ‘Justice’ has also tended to be used to justify particular actions, especially on developing states, in terms of upholding the national rule of law.

69 See commentary in Collins, R, ‘The Rule of Law and the Quest for Constitutional Substitutes’ 83 Nordic Journal of International Law (2014) 87Google Scholar.

70 See Correll, H, ‘A Challenge to the United Nations and the World: Developing the Rule of Law’ 18 Temple International and Comparative Law Journal (2004) 399Google Scholar and R Higgins, ‘The Rule of Law: Some Sceptical Thoughts’ in R Higgins, Themes and Theories: Selected Essays, Speeches and Writings in International Law (OUP 2009). Chesterman (n 58) 361, agrees, noting that ‘[a]t the international level anything resembling even [his] limited idea of the rule of law remains an aspiration’.

71 J Crawford and S Marks, ‘The Global Democracy Deficit: An Essay in International Law and Its Limits’ in D Archibugi, D Held and M Kohler (eds), Re-Imagining Political Community (Polity Press 1998) 84, repeated in Crawford, J, ‘The General Course on Public International Law’ (2013) 365 Recueil des Cours 13Google Scholar, ch 13. In the latter, Crawford accepts that the broad discretionary power of the Security Council is not necessarily a problem for the rule of law as the discretion is expressly provided for by the law of the UN Charter.

72 It is also a false dichotomy to indicate that the rule of law exists only when law and politics are distinct: see Hurd, ‘The International Rule of Law: Law and the Limit of Politics’ (n 65) 39.

73 See eg Dyzenhaus, D, ‘Hobbes on the International Rule of Law’ (2014) 28 Ethics & International Affairs 53Google Scholar.

74 Tamanaha (n 11) 131.

75 Nicaragua v US, ICJ Reports 1986, para 186.

76 Crawford, J, ‘International Law and the Rule of Law’ 24 AdelLRev (2003) 3Google Scholar, 4.

77 Rule of Law Index, World Justice Project, ‘Rule of Law Index’, available at <http://worldjusticeproject.org/rule-of-law-index>. The creators of this Index define these ideals of the rule of law as constraints on government; absence of corruption; open government; fundamental rights; order and security; regulatory enforcement; civil justice; criminal justice and; informal justice. Each of these factors is determined using a variety of data indicators, which then give the outcome as to what degree a state is compliant with the ideal rule of law: JC Botero and A Ponce, ‘Measuring the Rule of Law’ (2011) <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1966257>.

78 I Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations (Martinus Nijhoff 1998) 14.

79 Bingham (n 19) 174: ‘The concept of the rule of law is not fixed for all time. Some countries do not subscribe to it fully, and some subscribe to it only in name, if that. Even those who subscribe to it find it difficult to apply all its precepts quite all the time … . It remains an ideal, but an ideal worth striving for, in the interest of good government and peace, at home and in the world at large.’

80 ibid ch 10.

81 See Waldron (n 28).

82 For a critique of deriving international law solely from state practice, see H Kelsen, Principles of International Law (The Lawbook Exchange 1952) 3–5, who stated that to do so would risk destroying ‘the autonomous integrity of the legal order’. See also The Basis of Obligation in International Law and Other Papers by the Late James Leslie Brierly (Clarendon Press 1958) 66–7. See also the approach of global administrative law, which notes that the strict hierarchy in law-making found in many states does not exist, and so allows consideration of regulatory decision-making as part of law-making: Kingsbury, B, Krisch, N and Stewart, R, ‘The Emergence of Global Administrative Law’ 68 LCP (2004) 44Google Scholar.

83 Waldron (n 28) argues that states should not be the objects of protection of the international rule of law. For a full discussion of participation in the international legal system see McCorquodale, R, ‘An Inclusive International Legal System’ 17 LJIL (2004) 477CrossRefGoogle Scholar.

84 These could also be considered to be ‘a set of qualities that ought to be present in all legal orders’: Barber (n 38) 443, 452.

85 Bishop, W, ‘The International Rule of Law’ (1961) 59 MichLRev 553Google Scholar.

86 Declaration on the Rule of Law (n 6) para 2.

87 Watts, A, ‘The International Rule of Law’ (1993) 36 German Yearbook of International Law 15Google Scholar, 25, 41.

88 Universal Declaration of Human Rights 1948, Preamble. See also the Preamble to the Declaration on the Rule of Law (n 6): ‘[We] reaffirm our commitment to the rule of law and its fundamental importance for … the further development of the three main pillars upon which the United Nations is built: international peace and security, human rights and development.’

89 UN Charter art 1(3), as well as arts 55 and 56. Note B Rajagopal, ‘Crossing the Rubicon: Synthesising the Soft International Law of the IMF and Human Rights’ (1993) 11 BUIntlLJ 81, 94: ‘A reasonable inference would be that the purposes set forth in Article 55 are the raison d’être of any specialised agency created under Article 57 or Article 59. Interpreted in this manner, the IMF [and other UN specialized agencies] is under an obligation to fulfil the human rights purposes set forth in Article 55 of the United Nations Charter.’

90 Declaration and Programme of Action on Human Rights 1993 (agreed by all states) Part II, para 3: ‘The World Conference on Human Rights recognises that relevant specialised agencies … play a vital role in the formulation, promotion and implementation of human rights standards, within their respective mandates, and should take into account the outcome of the World Conference on Human Rights within their fields of competence.’

91 UN Charter, Preamble and art 1(2), and UN human rights treaty ratification: <http://indicators.ohchr.org/>.

92 UN Human Rights Council Resolution 5/1, 18 June 2007 (A/HRC/5/21).

93 See art5(3), Declaration on Principles of International Law (n 39); Charney, J, ‘Universal International Law’ (1993) 87 AJIL 529CrossRefGoogle Scholar; Filartiga v Pena-Irala, 630 F 2d 876 (2d Cir 1980).

94 See eg art 2(3) of the International Covenant on Civil and Political Rights (ICCPR) and art 2(1) of the Convention on the Rights of the Child.

95 B Chimni, ‘Third World Approaches to International Law: A Manifesto’ in A Anghie et al. (eds), The Third World and International Order: Law Politics and Globalization (Martinus Nijhoff 2003) 49, 73. See also B Rajagopal, ‘Counter-Hegemonic International Law: Rethinking Human Rights and Development as a Third World Strategy’ in R Falk, B Rajagopal and J Stevens (eds), International Law and the Third World: Reshaping Justice (2008) Third World Quarterly 71, who states that human rights discourse ‘can serve as an important tool in developing and strengthening a counter-hegemonic international law’. I am grateful to Penelope Simons for alerting me to this material.

96 Angie (n 52) 271–2.

97 Brooks (n 60) 83, 83. See, more generally, S Ratner, The Thin Justice of International Law (OUP 2015).

98 B de Sousa Santos, Towards a New Legal Common Sense: Law, Globalization, and Emancipation (Butterworths 2002) 94. See also P Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law beyond Borders (CUP 2012).

99 United Nations Office of the High Commissioner for Human Rights, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, (2011) UN Doc HR/PUB/11/04 (‘UNGPs’).

100 Doha Declaration, adopted on 14 November 2001: see <http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm>. TRIPS is found as Annex IC to Marrakesh Declaration of 15 April 1994: see <http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm>.

101 See R McCorquodale, ‘Pluralism, Global Law and Human Rights’ (2013) 2 Global Constitutionalism 287.

102 UNGPs (n 99) and J Ruggie, Just Business (WW Norton & Co 2013).

103 N Krisch, Beyond Constitutionalism (OUP 2010) 88.

104 See Simons, P, ‘International Law's Invisible Hand and the Future of Corporate Accountability for Violations of Human Rights’ (2012) 3 JHRE 5Google Scholar.

105 See eg Dyzenhaus, D, ‘Hobbes on the International Rule of Law’ (2014) 28 Ethics & International Affairs 53Google Scholar.

106 See Wehberg, H, ‘Pacta Sunt Servanda’ 54 AJIL (1959) 775, 782Google Scholar. On the peremptory nature of the principle, see R Kolb, Peremptory International Law – Jus Cogens: A General Inventory (Hart 2015).

107 Nuclear Tests (New Zealand v France) ICJ Rep 1974, 457, para 49.

108 Simmons, B and Hopkins, D, ‘The Constraining Power of International Treaties: Theory and Methods’ (2005) 99 American Political Science Review 623CrossRefGoogle Scholar.

109 H Lauterpacht, The Function of Law in the International Community (Clarendon Press 1933).

110 See Polisario Front Declaration, 21 June 2015: <http://theirwords.org/media/transfer/doc/declarationofficielle_polisariofront_2015-f426d1a96a4465affd1f87e794374b06.pdf>.

111 See Swiss Federal Council, Notification to States Parties, 26 June 2015: <https://www.eda.admin.ch/content/dam/eda/fr/documents/topics/aussenpolitik/voelkerrecht/Geneve/150626-GENEVE_en.pdf>. See K Fortin, ‘Universal Declaration by Polisario under API Accepted by Swiss Federal Council’ at <http://armedgroups-internationallaw.org/2015/09/02/unilateral-declaration-by-polisario-under-api-accepted-by-swiss-federal-council/>.

112 See Roberts, A and Sivakumaran, S, ‘Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law’ 37 YaleJIL (2012) 107Google Scholar; C Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (OUP 2008); and Bell, C and O'Rourke, C, ‘Peace Agreements or Pieces of Paper? The Impact of UNSC Resolution 1325 on Peace Processes and their Agreements’ (2010) 59 ICLQ 941Google Scholar.

113 Bingham (n 19) ch 8.

114 United Nations Convention on the Law of the Sea, 10 December 1982.

115 See eg the African Court of Human and Peoples' Rights and the UN Committee on the Rights of the Child.

116 See eg the International Criminal Court and the International Criminal Tribunal for Rwanda.

117 See eg the Court of Justice of the European Union and the Court of Justice of the Economic Community of West African States. The World Bank has created an Inspection Panel, which allows those corporations (and others) which believe that they will be affected detrimentally by a project in a state that is to be funded by the World Bank to ask the Panel to investigate their claim, even if the state is opposed to such investigation: World Bank Resolution No 93–6, 1993.

118 Jacobs, F, ‘The State of International Economic Law: Re-Thinking Sovereignty in Europe’ (2008) 11 JIEL 5Google Scholar.

119 Case C–402/05 P, Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I–6351 (Kadi I) para 281, 284 (emphasis added).

120 ibid 7.

121 See eg Government of Sudan v Sudan Peoples' Liberation Movement/Army (‘Abyei Arbitration’) (Arbitration Tribunal 22 July 2009), Permanent Court of Arbitration, <http://www.pca-cpa.org>; and Lathrop, C, ‘International Decisions’ (2010) 108 AJIL 66CrossRefGoogle Scholar.

122 See C McLachlan, L Shore and M Weiniger, International Investment Arbitration (OUP 2007) and S Montt, State Liability in Investment Treaty Arbitration (Hart 2012).

123 See eg Charnovitz, S, ‘Economic and Social Actors in the World Trade Organization’ 7 ILSA Journal of International and Comparative Law (2001) 259Google Scholar. See also Angie (n 52) 272, who notes that ‘[i]t is remarkable, for example, that the [World] Bank and the [International Monetary Fund] are not subject to any ‘‘rule of law’’, in a context when the Bank has continuously extolled the virtues of rule of law and when serious questions have arisen as to whether these institutions are adhering to their constituent documents’.

124 Crawford (n 76) 3, 12.

125 J Merrills, ‘The Globalisation of International Justice’ in D Lewis (ed), Global Governance and the Quest for Justice (Hart 2006) 89. See also Zangl, B, ‘Is there an Emerging International Rule of Law’ (2005) 13 European Review 73Google Scholar.

126 Slaughter, A-M, ‘A Typology of Transjudicial Communication’ 29 URichLRev (1994–95) 99, 137Google Scholar. See also Anghie, A and Chimni, B, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’ (2003) 2 ChineseJIL 77, 101Google Scholar.

127 International law's power can be seen as more than regulatory, as it is constitutive and generates feelings of legal obligation: see Brunnée and Toope, Legitimacy and Legality in International Law (n 4).

128 Mégret, F and Hoffmann, M, ‘The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities’ 25 HumRtsQ (2003) 314, 333–4Google Scholar.

129 Ombudsperson Institution in Kosovo, Special Report No 2 (27 October 2000): see <www.ombudspersonkosovo.org>.

130 A Clapham, Human Rights Obligations of Non-State Actors (OUP 2006) 127.

131 The ICJ has stated in Interpretation of the Agreement of March 25 1951 between the WHO and Egypt: Advisory Opinion, ICJ Reports 1980, 73 at 89–90: ‘[i]nternational organisations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law’. See the Final Report of the Committee on the Accountability of International Organisations, Report of the Seventy-first International Law Association Conference Berlin 2004, London, 2004, where it is stated (at 20) that ‘international organisations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law in carrying out their functions and in exercising the powers attributed to them’. See also J Alvarez, International Organizations as Law-makers (OUP 2005).

132 See eg N White and D Klaasen, The UN, Human Rights and Post-Conflict Situations (Manchester University Press 2005); and Kurzban, I, Lindstrom, B and Jonsson, S, ‘UN Accountability for Haiti's Cholera Epidemic’ (2104) AJILGoogle Scholar Unbound: <http://www.asil.org/blogs/un-accountability-haiti%E2%80%99s-cholera-epidemic>.

133 Case C–402/05 P, Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I–6351 (Kadi I) and Cases C-584/10 P, C-593/10 P and C-595/10 P, European Commission & the Council of the European Union v Yassin Abdullah Kadi, [2013] ECR (Kadi II).

134 Teitel, R, ‘Kosovo to Kadi: Legality and Legitimacy in the Contemporary International Order’ 28 Ethics & International Affairs (2014) 105, 108CrossRefGoogle Scholar.

135 Nada v Switzerland, App No10593/08, ECtHR Judgment of 12 September 2012.

136 ibid, paras 211–212. See also De Wet, E, ‘From Kadi to Nada: Judicial Techniques Favouring Human Rights over United Nations Security Council Sanctions’ (2013) ChineseJIL 787Google Scholar.

137 See Kanetake, M, ‘The Interferences between the National and International Rule of Law: The Case of UN Targeted Sanctions’ 9 IOLR (2012) 267Google Scholar, who notes that it is unclear if this is an application of the international rule of law or a purely political response.

138 Report to the Human Rights Council by the Special Representative of the Secretary-General (SRSG) on the issue of human rights and transnational corporations and other business enterprises, 7 April 2008, UN Doc A/HRC/8/5, para 9.

139 UNGPs (n 99). See, in particular, Guiding Principles 1–6. On ‘violations’ by corporations rather than ‘abuse’, see A Clapham, ‘Human Rights Obligations for Non-State-Actors: Where Are We Now?’ in F Lafontaine and F Larocque (eds), Doing Peace the Rights Way: Essays in International Law and Relations in Honour of Louise Arbour (Intersentia forthcoming).

140 Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises: Mapping International Standards of Responsibility and Accountability for Corporate Acts, 2007, UN Doc A/HRC/4/35 (‘SRSG Report 2007’) para 6.

141 See R McCorquodale ‘Non-State Actors and International Human Rights Law’ in S Joseph and A McBeth (eds), Research Handbook on International Human Rights Law (Edward Elgar 2010) 97.

142 See also, for example, the EU Directive on the disclosure of non-financial information by certain large companies (European Parliament and Council Directive 2014/95/EU of 22 October 2014).

143 For example, the finance industry's application of the Equator Principles (on environmental and social impacts of development) being applied to all borrowers and requiring a human rights impact assessment to be provided before financial support will be given; see <http://www.equator-principles.com/index.php/about-ep>.

144 See the development of the International Code of Conduct for Private Security Companies (ICoC), 9 November 2010 (http://www.icoc-psp.org) and International Code of Conduct Association (ICoCA), Articles of Association (2013) (http://www.icoca.ch/en/articles_of_association). For a discussion see MacLeod, S, ‘Private Security Companies and Shared Responsibility: The Turn to Multistakeholder Standard-Setting and Monitoring through Self-Regulation-“Plus”’ 62 NILR (2015) 119CrossRefGoogle Scholar.

145 For a fuller discussion see R McCorquodale, ‘Pluralism, Global Law and Human Rights’ (n 101). See also P Simons, ‘International Law's Invisible Hand (n 104).

146 See UNHRC Resolution 26/9, adopted 14 July 2014, A/HRC/26/L.22/Rev.1, and the work of the Open-ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, <http://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Pages/IGWGOnTNC.aspx>. Note the the Special Tribunal for Lebanon has concluded that ‘that the current international standards on human rights allow for interpreting the term “person” to include legal entities for the purposes of [contempt of court jurisdiction]’ - Special Tribunal for Lebanon, New TV Karma Mohamed Tashin Al Khayat Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt proceedings, STL-14-05/PT/AP/AR126.1, 2 October 2014 at para 60. See also the African Union Protocol to amend the Statute of the African Court of Justice and Human Rights (not yet in force), which adds a criminal chamber to the African Court of Justice and Human Rights, STC/Legal/Min/7(I) Rev. 1, 15 May 2014, esp art 46A.

147 T Bingham, ‘The Rule of Law in the International Order’ Grotius Lecture of the British Institute of International and Comparative Law, 18 November 2008, available at <http://www.biicl.org/news/view/-/id/109/>.