Applicability of the Rule of Law in International Law

The applicability of the Rule of Law (ROL) in International Law (IL) is complex due to:
- Absence of an overarching world government.
- IL primarily affects states rather than individuals.

Key Considerations

Subjects of IL: The article posits that the true subjects of IL are individual human beings.
Protections: It questions whether ROL requirements in IL for national sovereigns truly secure the protections needed by individuals.
National Sovereigns as Officials: Suggests viewing national sovereigns as officials or agencies of the IL system.
Analogy to Municipal Systems: Compares the entitlement of sovereign states to ROL protections at the international level with that of individuals at the municipal level.

Introduction

Absence of a global state-like entity leads to questions about ROL applicability in IL.
At the national level, ROL constrains state activities; the absence of an international sovereign raises questions about ROL's application.
The article focuses on theoretical issues arising from the lack of an international sovereign and the governmental roles of national sovereigns in the IL regime.

The Rule of Law

The ROL requires:
- Authority exercised within a framework of public norms.
- General rules laid down clearly in advance.
- Courts operating with due process, offering impartial dispute resolution.
- Legal equality, ensuring the law is the same for everyone.
These requirements are formulated for national legal systems, thus international application may need reformulation.
Tension exists between the need for legal certainty (predictability) and the culture of formal argument.

The Hobbesian Problem and the Absence of a Sovereign in IL

The absence of an overarching sovereign at the international level makes the ROL easier, as there is no Hobbesian problem of subjecting the sovereign to his own laws.
Hobbes believed subjecting the sovereign to laws was undesirable and impossible.
IL lacks an 'uncommanded commander,' consisting instead of independent institutions and processes interacting horizontally.
Modern constitutionalism and separation of powers challenge Hobbes's paradoxes at the national level.
H.L.A. Hart argued that even a sovereign is a tissue of rules, and the foundation of any legal system is a set of foundational secondary rules accepted and practiced by members of a ruling elite.
Relics of the Hobbesian problem exist in the UN Security Council, where subjecting decisions to legal control faces difficulties.
National sovereigns, as main sources and enforcers of IL, may free themselves from norms, raising concerns about customary IL.
Hart's conception addresses the logical side of Hobbes's argument but not the political one about conflict or paralysis.
As international governance expands, clearer lines of review and control may be needed, potentially creating a hierarchical structure.

Sovereignty and Rule-of-Law Discipline

The absence of a central authority makes ROL discipline more difficult in the international sphere.
At the municipal level, the ROL relies on state organization and discipline.
Lon Fuller emphasized congruence between law and official action.
Non-centralized law-making and administration are haphazard and uncontrolled.
The Nazi regime exemplified deliberate abandonment of the ROL through parallel organizations with conflicting actions.
Maintaining congruence between law and official action is challenging in modern international governance.
The Medellín case illustrates challenges in coordinating a decentralized federal system to fulfill legal obligations.
A tightly-constituted internal sovereign would avoid embarrassment from governmental subunits regarding international obligations.

Rule-of-Law Concerns in the International Realm

The absence of an international sovereign could make the ROL unnecessary.
The ROL aims to protect individual values like liberty and dignity.
Two points to address separately:
- The ROL is usually supposed to be restraining of governmental power.
- The ROL is usually supposed to be protective of human individuals.
The ROL aims to protect subjects from dangers created by IL itself.
Powerful entities sometimes act in the name of IL, necessitating predictability in its application, especially for smaller states.
Nation-states often have interests analogous to those of individuals, such as an interest in a calculable legal environment.
The ROL also aims to protect subjects from one another, including less powerful states from impositions by powerful states.
The international ROL seeks to vindicate juridical equality among states.

Protecting Individuals in the International Sphere

If the ROL operates in the international sphere, it must operate to protect the interests of nation-states.
IL should operate to protect the interests of the formal subjects of IL-nation-states. This analysis involves a misleading picture of IL, which treats individual sovereign states simply as subjects and considers only whether they need protections analogous to those needed by individuals at the level of national law.
The real purpose of the ROL in the international realm is the protection of the populations committed to their charge rather than the protection of sovereign states.
States exist as a means for the nurture, protection, and freedom of human individuals.
States are recognized by IL as trustees for the people committed to their care.
IL articulates common standards for human rights protection, reflecting that governments are trustees for their people's interests.
Applying ROL principles to IL may not be the best way to protect the interests of the people.
ROL constraints on norms benefit governments, which may or may not benefit the people they rule.
Insistence on the ROL may harm some people, it may actually protect others, such as those who might be held liable as war criminals for violating international standards.
Determinacy and certainty of clear norms are valued to ensure individuals know clearly what protections they can rely on.

Are Nation-States Subjects or Agencies of International Law?

Nation-states are not really the subjects of IL; they are held in the grip of a picture that sees the relationship between national sovereigns and IL as exactly analogous to the relationship between individual citizens and national law.
There are different kinds of subordination to law; ordinary humans are subordinate to the law of the land, and government agencies are also subordinate to the law of the land.
At the municipal level, governments are just like individuals; in Hobbes’ language, ‘commonwealths once instituted take on the personal qualities of men’.
National sovereigns at the international level are already law-constituted entities.
The state’s sovereignty is made for the benefit of those whose interests it protects.
The sovereignty and sovereign freedom of the individual state are an artifact of IL.
Abram Chayes once remarked that ‘[i]f states are the “subjects” of international law, they are so, not as private persons are the “subjects” of municipal legal systems, but as government bodies are the “subjects” of constitutional arrangements.’
Nation-states in IL are not just like individuals; they are also like corporations; they are like trustees, they are like agencies, they are like municipalities, they are like police departments, and they are like legislators.
National sovereign states are sources of IL as they participate in treaty-making and the emergence of customary ordering.
Regulating a national sovereign in IL must, therefore, have some of the flavor of regulating a law-maker at the national level.
A nation-state is in some respects also like an official or an agency, so far as the administration and enforcement of IL is concerned.
In the absence of any concentration of the means of legal coercion in international institutions, the coercive role often falls to individual states or coalitions of states, and when they undertake the enforcement of IL, they take on a public role in relation to the law.

Is the Government Entitled to the Benefit of the Rule of Law?

Officials and agencies exercise governmental power over individuals and are subject to the law.
Lon Fuller's account of the ROL makes little sense applied to the relationship between a legislature and an administrative agency.
Edward Rubin argued that vagueness, impracticability, and retroactivity should not be regarded as vices in a legislature's dealings with its agencies.
The ROL requires legal equality, where individual states must be regarded as equal before the law.
There is no reason for municipal law to treat all agencies as equals, as some are rightly treated as heterogeneous and unequal.
The principle of legal equality in sovereignty has little to do with Dicey’s conception of the ROL, it is based on efforts in the IL literature to argue for sovereign equality on grounds used in arguments that are appropriate for legal equality among human individuals.
Greater effort needs to be made to promulgate IL to nation-states.
It is simply not clear whether nation-states have the inherent interest in liberty that individuals have.
Attempts by legislators to micromanage agencies with highly specific rules generally do not work.

Are States, like Individuals, Entitled to Liberty?

Rubin’s insight: It may not be appropriate to apply traditional ROL requirements to interactions between legislatures and state agencies.
Contrast between government/individual responsibilities at the national level versus national governments at the international level.
The ROL requires citizens to obey the laws that apply to them and refrain from undermining the legal system.
Individuals are entitled to laws that are clearly stated, and any uncertainty benefits them.
A presumption favors individual freedom in the absence of a clearly stated constraint laid down in a promulgated legal text.
It is legitimate for lawyers and their clients to navigate the legal system with freedom in mind. This is consistent with legality because the whole point of the ROL is to secure individual freedom by providing a predictable environment.
The administration does not have an inherent interest in freedom of action; it is important that the government should in all things act in a way that upholds the ideal of ‘a nation of laws, not men’.
Governmental freedom is not the raison d’être of the ROL.
A government committed to legality should feel pressed to remedy situations where official discretion is left unregulated by bringing new law to fill the gaps.
The freedom of action that is set back when the government is surprised by a court’s ruling is not something to be treasured inherently; governments should proceed on the basis that it is to act in accordance with the law in all of its operations.
The state’s responsibility requires that it not only ensure the personal freedom of its populations but that they are free from things like violence and can travel and trade safely.
International law should enable these freedoms; at no level of authority should a sovereign government operate its authority outside of the parameters of established law.
When analyzing the requirements of the ROL under IL, if there is some uncertainty between an individual and sovereign government, the individual model is more appropriate to turn to, where any lack of clarity is resolved in favor of the freedom of action of the individual sovereign state.
States aren't required to establish international law or contribute to or strive to bring ‘soft law’ into focus.

Are States Not Entitled to Respect?

The governmental character of the nation-state doesn't evaporate when we move up to the international realm; since the state is in great power, its power continues to generate ROL concerns.
Most ROL concerns will be motivated by the well-being of human individuals, not the freedom of national sovereigns.
Though the sovereign state is a basic unit of international law, it is not entitled to any respect as a law-constituted and law-governed entity.
It is not to be regarded as an anarchic individual, dragged kicking and screaming under the umbrella of law for the first time by some sort of international social contract.
The obligation in the natural law doesn't apply to states under the law of nations because as states, they already have an internal juridical constitution.
A state has great dignity in its own right; that dignity is inseparable from its law-governed character.