Zangl 2005, Teksty - Politologia - Brema, Politik und Recht
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European Review, Vol. 13, Supp. No. 1, 73–91 (2005) © Academia Europaea, Printed in the United Kingdom
T
HE RULE OF LAW: INTERNATIONAL-
IZATION AND PRIVATIZATION
4 Is there an emerging international
rule of law?
BERNHARD ZANGL
An international rule of law complementing modern states’ domestic rule of
law seems to be emerging. At least in the four issue areas of international law
considered here – international trade, security, labour, and environmental law –
empirical evidence suggests that relevant dispute settlement procedures have
been judicialized and their use by complainants as well as their acceptance by
defendants have increased in practice. Albeit still far from what we are used to
from the domestic rule of law, the emergence of an international rule of law
can be regarded as indicative of a fundamental transformation of modern states.
Introduction
Since the 17th century, the rule of law has emerged as the dominant legal principle
within
modern states, while
between
modern states sovereignty has become the
central legal principle. The former principle reflects the domestic hierarchy of the
state over its society, while the latter institutionalizes the anarchy within the
international society of states. Legally, both principles are fundamental to modern
states’ identity. As principles, however, rule of law and sovereignty could hardly
be more contradictory. While the rule of law requires that states respect domestic
law, sovereignty gives states the justification to act arbitrarily at their discretion
beyond international law. If, therefore, a substantial international rule of law were
to emerge that complements the domestic rule of law, this would amount to a
fundamental transformation of the modern state.
To trace this transformation, I will discuss whether issue-area-specific
international judiciaries constitute, similar to domestic judiciaries, the institu-
tional backbone of an emerging international rule of law. After all, internationally,
there are more and more judicial procedures designed to adjudicate in disputes
over breaches of international law.
11,18
The diplomatic dispute settlement
procedures under GATT, for instance, have been replaced by a judicial dispute
settlement mechanism under the WTO, which is authorized to convict, and if
necessary punish, states that do not fulfil their commitments. Recently, an
International Criminal Court was created to sentence war criminals, and the UN
74
Bernhard Zangl
Security Council now regularly criticizes those states threatening international
peace and authorizes or mandates sanctions against them. The rulings of the
European Court of Justice enjoy both direct effect and supremacy in domestic
legal orders. International environmental regimes such as the ozone and the
climate regime have various built-in, quasi-judicial procedures designed to cope
with non-compliance, and an International Tribunal for the Law of the Sea has
also been established.
26
For many idealists, the judicialization of adjudication procedures leads almost
automatically to better compliance with international law and also to a comparable
treatment of breaches of international law. They consider the emergence of an
international rule of law as mainly a matter of good – i.e. judicial rather than
diplomatic – institutional design for adjudication procedures.
5
By contrast, for
so-called realists it is not a matter of institutional design of adjudication
procedures whether states comply with international law and whether comparable
breaches of international law will be treated comparably. They assume that, due
to the anarchical structures in international relations, powerful states in both
judicial and traditional diplomatic adjudication procedures can and will act as they
please, while less powerful states have to suffer what they must.
15
However, the question whether – and if so where and when – judicialized
adjudication procedures coincide with a corresponding practice of dispute
settlement is an entirely empirical one, and cannot be answered with theoretical
assumptions, idealist or realist. Idealist assumptions are clearly undermined by the
fact that the existence of the International Court of Justice (ICJ), with a judicialized
adjudication procedure, has hardly transformed international practices of dispute
settlement. Since it has rarely been invoked and its rulings were often ignored,
it could hardly institutionalize an international rule of law. But realist assumptions
are also dampened, here by the fact that the European Court of Justice (ECJ),
marked by a heavily judicialized process of adjudication, has transformed
European dispute settlement. In contrast to the ICJ, the ECJ is regularly invoked
and its rulings are usually followed, thereby establishing an international rule of
law in Europe.
1
The judicialization of adjudication procedures can be regarded as a first
necessary condition for an emergent international rule of law. In contrast to
traditional diplomatic adjudication, judicialized procedures offer at least the
chance for a comparable treatment of comparable breaches of international
law.
11,18
For a fully-fledged international rule of law, however, at least two further
conditions have to be met. First, complainants should generally be prepared to
make use of these adjudication procedures when others do not comply with their
international commitments. Second, defendants should be prepared to accept these
adjudication procedures when faced with complaints about their non-compliance
with international commitments. Hence, the judicial dispute settlement system
Is there an emerging international rule of law?
75
within the GATT/WTO context only points to an emergent international rule of
law on trade if settlement procedures are both generally used by complainants and
accepted by defendants.
Preliminary evidence suggests that all the conditions for an international rule
of law are met to a larger degree today than they were two decades ago. To
substantiate this, three areas of international law that are structurally similar to
three major areas of domestic law need to be scrutinized:
(1)
Private goods law
. In one area that is structurally similar to domestic
private law, international law is designed to protect private goods of
state or non-state actors. In this area, disputes usually imply that a
state or non-state actor files a complaint with an international
institution about another state or non-state actor’s violation of
international legal obligations. An example for this area of
international law, to which almost all international regimes dealing
with economic issues belong, is the World Trade Organization
(WTO).
(2)
Public goods law I.
There are two other areas of international law,
in both of which international public goods are legally protected. In
the first of these areas – which can be regarded as the structural
equivalent to domestic criminal law – disputes typically position
international institutions against single state or non-state actors that
allegedly violate their international obligations. Most international
regimes concerning security issues are located in this area of
international law. The regime of the UN Security Council (SC) is an
example.
(3)
Public goods law II.
The second area in which international law is
meant to protect public goods has some structural similarities to
domestic public law. Here, disputes typically imply that non-state
actors file a complaint – for example with an international institution
– about state actors’ violations of their international legal obligations.
Various international environmental regimes (IERs) and the Inter-
national Labour Organization (ILO), for example, belong to this area.
This essay investigates whether an international rule of law is emerging in each
of these areas: First, I outline the
judicialization
of issue-area-specific adjudication
procedures over the last two decades. Second, I present preliminary evidence that
the procedures in these issue areas are generally
used
by complainants in order
to defend their rights. Third, I give some evidence indicating that adjudication
procedures in these issue areas are generally
accepted
by defendants. The paper
concludes with an assessment on the emergence of an international rule of law.
76
Bernhard Zangl
Judicialization as a procedural precondition of an international rule
of law
Although it is in practice an important dimension of the modern state, the rule of
law is hard to define. Many different definitions have been given;
23
however, I
conceive of an international rule of law as a legal order based on the principle
that all actors are equal before the law and, hence, no actor is above the law. Within
this order, all actors, no matter how powerful, are equally bound by legal rules
and, regardless of their power position, violations of these legal rules by these
actors are treated equally. In other words, within a legal order based on the rule
of law like cases must be treated alike.
In most issue areas with traditional diplomatic adjudication procedures,
the conditions for a comparable treatment of comparable cases do not hold;
15
more powerful states are more likely to get away with violations of
their legal obligations, while less powerful states are more likely to have
to face consequences when committing similar violations.
27
For example,
although China and North Korea might have a similar human rights record,
owing to the diplomatic procedures of the United Nations Human
Rights Commission (UNHRC), China has much less cause to worry about
United Nations resolutions condemning its human rights violations than North
Korea.
With the establishment of judicial adjudication procedures in some issue
areas of today’s international relations, however, at least a procedural framework
has been established for treating like cases alike. Under such procedures, based
on independent courts, the likelihood of powerful actors having to face
consequences when they violate their legal obligations should be similar to that
of a less powerful actor committing a similar violation. For instance, before the
European Court of Human Rights (ECHR), comparable human rights practices
of, say, Germany and Luxembourg are likely to lead to comparable legal
consequences.
a
While it is true that neither diplomatic adjudication procedures, like those
of the UNHRC, have become the exception, nor are judicial adjudication
procedures, like those of ECHR, the rule,
14,18
over the last two decades
many adjudication procedures in international relations have gradually become
judicialized, i.e. they have departed from the negotiation and mediation mode
and have become more court-like. The key developments in this respect are
that adjudication procedures have become increasingly politically independent,
rely increasingly on compulsory jurisdiction and have become more access-
ible.
11,24
However, even with respect to the European Court of Justice the degree to which power can affect rulings
is a matter of debate, as can be gathered from the works of Garret
7
and Mattli and Slaughter.
13
a
Is there an emerging international rule of law?
77
Independence
The political independence of adjudication procedures is a crucial precondition
for the equitable treatment of comparable violations of international legal
rules.
11:459–462
Up until the early 1980s there were only a few independent
international adjudication procedures for deciding whether or not legal rules have
been violated. In most issue areas of international relations, adjudication systems,
if they existed at all, were dominated by panels, bodies, committees or
commissions like the UNHRC, made up of politically dependent state
representatives. Today, however, there are more than 40, mostly independent
international courts or court-like bodies, most of which were established during
the 1990s.
14,18:723–728
One prominent example is the GATT/WTO.
10:107–137
In the 1950s, decisions
on disputes over alleged violations of GATT obligations were undertaken
by so-called panels, composed of three legal experts acting in their individual
capacities.
9
Their independence was compromised, however, by the fact
that those states involved in a dispute themselves selected the panellists on a
case-by-case basis. Frequently, representatives from neutral states rather than
truly independent legal experts were selected as panellists.
17:66–91
However,
in the late 1980s and early 1990s, especially after the WTO had replaced
the old GATT, the adjudication procedure became more politically independent.
While the composition of the panels did not change, a remarkably independent
Appellate Body was established to revise panel reports in appeal cases. In
contrast to the panels, the Appellate Body is composed of legal experts who are
as independent as judges of ordinary courts. Rather than being selected
by the states involved on a case-by-case basis, the seven members of the Appellate
Body are now elected to deal with all disputes that might arise during their
four-year term. This gives them a significant degree of political indepen-
dence.
17:177–198
By contrast, the independence of the Security Council is still limited. The SC
has to be considered as an adjudication authority because its main task is to
determine whether states’ violations of international legal obligations constitute
threats to international peace, breaches of international peace, or acts of
aggression. Its independence, however, is compromised, because, as stipulated in
the United Nations Charter of 1945, its decisions are made by 15 state
representatives comprising representatives of the five permanent members – i.e.
France, Great Britain, China, Russia and the US – and ten non-permanent
members elected by the United Nations General Assembly. These representatives
are committed to follow instructions they receive from the foreign ministries of
their respective states. Decisions made by the Council can therefore hardly be
conceived of as being free of political motivations.
12
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