An Inquiry into the International Rule of Law

Abstract

The modern articulation of the constitutional principle of the rule of law is credited to A.V. Dicey, who identified three essential elements of what is generally considered a formal version of the concept. Namely, (1) to be ruled by law, not by discretionary power, (2) to be equal before the law, private individuals as well as government officials, and (3) to be submitted to the general jurisdiction of ordinary courts, the best source of legal protection. The main goal of the paper is to externalise these core values of the rule of law onto the international plane in an attempt to examine how they are found in the essential features of the international legal system, understood in traditional terms (i.e. treaties as normative source, states as legal actors, International Court of Justice as adjudicative body). The strongest claim is at the level of normativity: the conduct of states is ruled by law, i.e. by legal norms providing certainty, predictability and stability. The verdict is also positive as regards the functional dimension, concerning the creation and application of international law. Treaties are promulgated satisfactorily and their publication is adequate; furthermore, international law is now universal in its reach and the fundamental principle of sovereign equality assures that, in most instances, similarly situated states are treated in the same way, that is without discrimination. The institutional level remains problematic, however, in spite of improvements in recent years. The continuing lack of compulsory jurisdiction for the ICJ cannot be ignored, even if most of the states have committed to international adjudication through the optional clause (or the like). There is also a will to open the door to a power of judicial review for the ICJ, which could rule on the legality of the decisions of other UN organs (e.g. Security Council). The independence and impartiality of the ICJ are uncontested, and the judicial process is truly accessible to all states. In terms of effectiveness, the compliance record is outstanding, but the Security Council's discretion for ultimate enforcement of judgments remains a concern. In the end, dwelling upon the immense social power of this terminology, the conclusion suggests the emergence of an international rule of law.