25 January 2019

ESIL IGHIL Pre-Conference Workshop: The Rule of Law in Historical Perspective, ESIL Research Forum Göttingen, 3 APR 2019

Denise Wohlwend (University of Firbourg (CH)), The Rule of Law in the Debates of the Sixth Committee of the United Nations General Assembly – Reflections on the Evolution and Universality of the Concept

The rule of law provides that people should be ruled by the law. Despite its prominence in today’s legal and political discourse on a global scale, the exact content of the rule of law remains contested. Legal scholars commonly distinguish between formal and substantive conceptions of the rule of law, which are often associated with positivistic and naturalistic accounts of law, respectively. Within the United Nations (UN), an “autonomous notion” of the rule of law has been emerging since the 2000s. Importantly, in 2005 the UN member states recognized the rule of law as one of the organization’s “core values and principles”, as well as “the need for universal adherence to and implementation of the rule of law at both the national and international levels”. In 2006, the UN General Assembly decided by resolution A/RES/61/39 to include in the provisional agenda of its sixty-second session the item “The rule of law at the national and international levels”. Since then, it has debated the topic, selecting different subtopics, through its Sixth Committee. This has resulted in the adoption of annual resolutions reaffirming the UN member states’ commitment to the rule of law at the national and international levels. Despite multiple references to the rule of law contained in UN documents, it is not entirely clear what the rule of law at both the national and international levels amounts to within the UN. The UN member states disagree about its exact content. True, frequent reference has been made to the definition of the rule of law put forward by the UN Secretary-General in his 2004 Report “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies”. Moreover, it has been held that over the years, the member states of the UN have settled on this conception of the rule of law. However, so far, a comprehensive analysis of the debates about the rule of law at the national and international levels within the Sixth Committee is missing. In this paper, I aim to fill this gap. I intend to analyze the discussions about the rule of law at the national and international levels conducted by the representatives of UN member states within the Sixth Committee, from 2006 until today. I examine (1) whether the expressed views reflect the conventional distinction between formal and substantive conceptions of the rule of law, and (2) whether a single or common conception of the rule of law may be deemed to have emerged. I shall then use the findings of the analysis as a starting point for a more general reflection on the issue of the universality of the concept of the rule of law. In short, the rule of law can be deemed universal as long as there are common elements that make it the same concept, in spite of differences in its parochial interpretation. Conversely, if there are no such elements, the universal character of the rule of law may be questioned. Of course, a consideration of the universality of the rule of law concept requires a clarification of the (possible) meaning(s) of universality. Moreover, in the paper, I shall also deal with the question of whether, and if so how, the issue of the universality of the concept of the rule of law is connected to positivistic and naturalistic approaches to the concept of law.
Premislaw Tacik (Jagellionian University, Krakow),
The Evolution of the Rule of Law in the Framework of the European Convention on Human Rights

The presentation aims to reconstruct the outline of history of how the concept of the rule of law was understood and applied in the regime of the European Convention on Human Rights, particularly in regard to ECtHR’s and EComHR’s jurisprudence. Even though the maintenance of the rule of law is one of the goals of the Council of Europe and part of the ECHR’s preamble, historically it was not understood as a source of directly enforceable rights. As stated by the ECtHR in an early judgement in Golder v. the UK, it was, however, a point of reference in interpretation of particular rights and freedoms enshrined in the Convention, particularly when their limitations were at stake. Through this linkage, the ECtHR made some cautious steps to make the rule of law a living and effective concept. It influenced the establishment of standards concerning the quality of laws limiting rights and freedoms (as in Tourancheau et July v. France case) and shaped the understanding of the position of the judiciary under the ECHR. In the latter regard, the ECtHR for a long time displayed a restrained approach and gave a significant leeway to the states in regulating the status and nomination of judges. Nonetheless, in the recent years a different trend might be observed. It seems that the ECtHR developed the standards of the rule of law in the response to the illiberal backlash. The Baka v. Hungary case might be interpreted as a milestone in this regard: the ECtHR declared the violation of Art. 6 § 1 ECHR consisting in terminating the status of a judge via targeted legislation, by which Hungarian authorities wanted to prevent the president of the Hungarian Supreme Court to continue his term. In this ruling, the concept of the rule of law links the standards of the independence of the judiciary – now influenced by soft law of the CoE – with requirements of proper legislation. Moreover, by breathing a new life into Article 18 in the Merabishvili v. Georgia case the ECtHR seems to notice that the rule of law must be defended by preventing the states from executing their illegitimate goals in restricting rights and freedoms. All in all, it might be argued that the approach to the rule of law under the ECHR is in dynamic transformation: the Court seems to pass from restrained interpretation to active support of the rule of law in confrontation with the rise of illiberalism.

Alan Nissel, Capitalism and the Evolution of State Responsibility: How US Law became Binding upon New States and, Ultimately, Everyone Else
Since the late nineteenth century, Anglo-American lawyers have employed domestic standards of property protection to hold Latin American governments responsibility for injuries suffered by Western aliens. Barely hidden behind this rule of law mask was a capitalist structure of economic expectations that favored Western over local individuals. The doctrine of state responsibility emerged, historians explain, as a mechanism for fostering the peaceful resolution of international claims. The idea was that arguing over legal norms – by professional lawyers in third party courts and tribunals – was certainly preferable to diplomatic and military alternatives. There is data to point to that indicates a happy correlation: the establishment of state responsibility has coincided with the rise of international arbitration and the demise of force interventions. This result has convinced many that international law, despite its lack of any police force, can finally be described as positive law. Because there are legal consequences for international breaches, international law must be binding. Today, state responsibility is the sacred cow of international lawyers, assuring us of the reality of their cause. However, the doctrine of state responsibility is not just a legal norm of peaceful dispute resolution; neither is it is simply a neutral procedure of international arbitration. It is a framework of capitalist values that was imposed by Anglo-American diplomats to provide better than local protection to their nationals residing in Latin America. The evolution of state responsibility is a story of Anglo-American triumph in the international debates over the international minimum standard of care and about the normative basis for recognizing States, of admitting nations to international organizations and of identifying them as international personalities. The historic success of State responsibility is, thus, not just a rule of law narrative; it is continued evidence of how Western imperial values underpins the primary enforcement regime of international law: State responsibility.

Ryan Mitchell (Chinese University of Hong Kong), International Rule of Law and the Problem of Legal Sanction: War and the Zwangsordnung
The project of using international law to prohibit wars of aggression grew steadily in importance from the Hague Conference era through World War One, culminating with the Kellogg-Briand Pact of 1928. While there has been much recent discussion of the Pact, and debates about its role in originating the crime of aggression (most recently consolidated via the Kampala Amendments to the Rome Statute), there has been less detailed examination of the specific contemporary debates as to the legal validity of the Pact's norm seeking to prohibit aggression. The views of prominent legal scholars of the time can be distinguished into three main contending positions, each of which then had significant influences upon the subsequent theory and practice of public international law. These three perspectives can be summarized as positing either that 1) the Pact independently abolished the validity of all wars per the principle pacta sunt servanda or as an element of customary international law (the view of Quincy Wright, Hersch Lauterpacht, and others); 2) the Pact had no meaningful legal effect due to its broad exceptions and reservations, as well as the fundamental impossibility of restricting states’ traditional rights to wage war (Carl Schmitt's view); or 3) the existing jus ad bellum could not in fact be revised by the Pact per se, but only by an international organization exercising an effective monopoly on the legitimate use of force (Kelsen's view). This paper explains the evidence, methodology, and theoretical implications of each of these perspectives, including the context of the scholars and states who were their respective advocates. It concludes by endorsing the third view, exemplified by Hans Kelsen in his critical analysis of legal prohibitions of war, arguing that the mere disavowal by states of their rights to wage war (as reflected in the Pact) does not equate to a legal prohibition of war under international law unless there is a centralized sanctioning authority enforcing that prohibition, as was introduced under the UN Charter in 1945. This view, while conservative in some ways, also provides the foundation for Kelsen's related claim that international law as a "Zwangsordnung," or sanction-based order, is potentially as robust and enforceable a system of legal norms as is any domestic legal system.

Andre Nunes Chaib (MPI Luxemburg), The Various Sides of a Coin: Ideas of Rule of Law in the Ideology of International Adjudication

International courts have been both the object of praise and criticism throughout their existence. It is also well-known that their creation, as well as the use of international arbitration, was also always replenished with controversies. Nevertheless, despite controversies, international courts and international arbitration made their way into the life of states and individuals during the last century and had come to be accepted as important institutions in international life. Much of the backlash and the critique on international adjudication nowadays come from a tension existing between the various ideologies pervading the imaginary that informs the work of international courts. This tension finds its origin in the historical debates at the turn of the 19th to the 20th century involving international lawyers and diplomats, mainly from Europe and the United States about the concept of the rule of law at the international law and what role should arbitration or permanent international courts should have in enforcing it. In light of these debates, this paper will look into the ideologies that informed these debates and how this tension – resulting in utopic positions but also in stark criticisms – created the legal and political imaginary for international adjudication until today. Much has been written and said about the role of US international lawyers, such as Elihu Root, in pushing forward the movement towards the creation of permanent international adjudicatory mechanisms and the resistance some of them faced by European international lawyers, fearful of what courts at the international level might do to their then still strong empires’ sovereignty. Although these two sides are revealing of a particular ideal of the international rule of law, it does not tell the whole story. Therefore, this paper hopes to shed light to other ideas coming from other parts of the world, which particularly during the Second Hague Conference in 1907, influenced and impacted the ideology of international adjudication and the ideal of international rule of law that was formed at that time and that remains pervasive to these days. Individuals, such as the Brazilian Ruy Barbosa, were known to have been staunch defenders of sovereign equality and offered specific ideas about the nature and function of a potential international court. This paper hopes to clarify these different positions that were put forward at that time by not only US or European lawyers, but also by individuals of the Global South. In doing so, it hopes to show how specific ideas regarding the international, advanced by cosmopolitan thinkers such as Jeremy Bentham and Immanuel Kant, but also lawyers such as Andres Bello and Carlos Calvo were decisive in the formation of the ideology of modern international adjudication. Such an inquiry should also reveal the origins of the tensions existing nowadays regarding international adjudication and aid in the understanding of its criticism.
The conveners of the Steering Committee for the ESIL Interest Group History of International Law:
Jan Lemnitzer (Southern Denmark)
Markus Beham (Passau)
Martin Clark (LSE)
Frederik Dhondt (Brussels/Antwerp)
Hossein Piran (US/Iran Claims Tribunal)

(source: ESILHIL Blog)

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