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Two idea(l)s of the international rule of law

  • RICHARD COLLINS (a1)

Abstract:

The international rule of law is a somewhat ubiquitous concept yet, as idea, it is marred by ambiguity and disagreement and, as ideal, constantly frustrated by the institutional conditions of the decentralised international legal order. Rather than necessarily undermining the concept, however, I argue that these structural conditions cause a kind of conceptual rupture, resulting in seemingly opposed or contradictory idealisations. On the one hand, the international rule of law can be understood as what Terry Nardin has called the ‘basis of association’ in international relations. This understanding places importance on the legal form as an end in itself, whereby the structural or institutional autonomy of international law is critical to the peaceable conduct of international relations. On the other hand, however, the rule of law exists as an unfulfilled promise of an order to come: it is distinctly anti-formalist in nature, stressing the functional capacity of international law to actually constrain political actors (primarily states) and thus seeking to develop more effective international institutional mechanisms. Although these competing idealisations give rise to a certain contradiction and inherent tension, their conceptual opposition is, I believe, critical to an understanding of authority and accountability dynamics in an era of ‘global governance’.

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Lecturer in International Law, University College Dublin. This article develops ideas and claims first set out in Ch 7 of R Collins, The Institutional Problem in Modern International Law (Hart, Oxford, 2016). Earlier versions of this article were given at the University of Virginia, September 2017, Osgoode Hall Law School, York University, 21 February 2018, and the University of Sydney, 5 April 2018. Thanks to the participants at these workshops, and to Christopher May, Weiran Kong, Patrick Emerton and Richard Joyce, as well as the two anonymous reviewers for their useful comments and feedback. As usual, however, responsibility for everything contained herein, particularly errors or omissions, lies solely with the author.

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1 Koskenniemi, M, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge University Press, Cambridge, 2001) 361.

2 In addition to Koskenniemi’s work, see also Carty, A, ‘Why Theory? – The Implications for International Law Teaching’ in P Allott et al., Theory and International Law: An Introduction (BIICL, London, 1991) 75, 80–2; and generally Carty, A, The Decay of International Law: A Reappraisal of the Limits of Legal Imagination in International Affairs (Manchester University Press, Manchester, 1986) as well as Chs 1–2 of Collins, R, The Institutional Problem in Modern International Law (Hart, Oxford, 2016).

3 See generally Collins (n 2).

4 See inter alia R Collins, ‘The Rule of Law and the Quest for Constitutional Substitutes in International Law’ (2014) 83 Nordic Journal of International Law 87; A Somek, ‘From the Rule of Law to the Constitutionalist Makeover: Changing European Conceptions of Public International Law’ (2011) 18 Constellations 567.

5 UNGA Res 67/1, ‘Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels’ (30 November 2012) para 1, at <https://www.un.org/ruleoflaw/files/A-RES-67-1.pdf>.

6 Nollkaemper, A, National Courts and the International Rule of Law (Oxford University Press, Oxford, 2011) 1.

7 Blum, G, ‘Bilateralism, Multilateralism, and the Architecture of International Law’ (2008) 48 Harvard International Law Journal 323, 331–2.

8 I will not list the literature here, though many of the most relevant pieces will be cited as the article develops. See, in particular, references from nn 54–55 onwards.

9 Chesterman, S, ‘An International Rule of Law?’ (2008) 56 American Journal of Comparative Law 331, 332.

10 May, C, The Rule of Law: The Common Sense of Global Politics (Edward Elgar, Cheltenham, 2014).

11 For discussion, see P Burgess, ‘The Rule of Law: Beyond Contestedness’ (2017) 8 Jurisprudence 480; and more broadly see inter alia T Endicott, ‘The Impossibility of the Rule of Law’ (1999) 19 Oxford Journal of Legal Studies 1; J Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’ (2002) 21 Law and Philosophy 137; and S Williams, ‘Indeterminacy and the Rule of Law’ (2004) 24 Oxford Journal of Legal Studies 539.

12 See Collins (n 4).

13 On the rhetorical uses of the rule of law generally, see the very recent and very helpful introductory chapter: C May and A Winchester, ‘Introduction to the Handbook on the Rule of Law’ in C May and A Winchester (eds), Handbook on the Rule of Law (Edward Elgar, Cheltenham, 2018) 1, 2–7.

14 Ibid and I Hurd, ‘The International Rule of Law and the Domestic Analogy’ (2015) 4 Global Constitutionalism 365.

15 Shklar, J, ‘Political Theory and the Rule of Law’ in Hutchinson, AC and Monahan, P (eds), The Rule of Law: Ideal and Ideology (Carswell, Toronto, 1987) 1, 1.

16 Koskenniemi, M, ‘The Politics of International Law’ (1990) 1 European Journal of International Law 4, 4.

17 Nardin, T, Law, Morality, and the Relations of States (Princeton University Press, Princeton, NJ, 1983) 183.

18 See eg Higgins, R, Problems and Process: International Law and How We Use It (Clarendon Press, Oxford, 1994) 4950 and, more recently, J d’Aspremont, ‘Introduction’ in J d’Aspremont (ed), Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law (Routledge, Abingdon, 2011) 1, 1–3.

19 See generally, Ch 1 of Capps, P, Human Dignity and the Foundations of International Law (Hart, Oxford, 2009).

20 I am not making a hugely novel claim in highlighting this tension. The best outline of these tensions in the rule of law and the modern law-state generally is arguably R Unger, Law in Modern Society (Free Press, New York, NY, 1976). Applied to international law more broadly, this tension is outlined most obviously in Koskenniemi, M, From Apology to Utopia: The Structure of International Legal Argument (Cambridge, Cambridge University Press, 2005).

21 For Oppenheim, these ends could loosely be summarised as ‘peace among the nations and the governance of their intercourse by what makes for order and is right and just’. See Oppenheim, L, ‘The Science of International Law: Its Task and Method’ (1908) 2 American Journal of International Law 313, 314.

22 Koskenniemi, M, ‘What is International Law for?’ in Evans, M, International Law (4th edn, Oxford University Press, Oxford, 2014) 29, 39.

23 See, most obviously, Koskenniemi (n 20).

24 See, eg, J Williams, ‘Pluralism, Solidarism and the Emergence of World Society in English School Theory’ (2005) 19 International Relations 19.

25 Buchan, R, ‘A Clash of Normativities: International Society and International Community’ (2008) 10 International Community Law Review 3.

26 See WG Friedmann, The Changing Structure of International Law (London, Stevens & Sons, 1964); and more recently, see P-M Dupuy, ‘International Law: Torn between Coexistence, Cooperation and Globalization. General Conclusion’ (1998) 9 European Journal of International Law 278.

27 Koskenniemi (n 22) at 47–9 in particular.

28 J Gray, Two Faces of Liberalism (Polity Press, London, 2000).

29 See, eg, G Simpson, ‘Two Liberalisms’ (2001) 12 European Journal of International Law 537.

30 Hans Morgenthau once argued that ‘[t]he application of domestic legal experience to international law is really the main stock in trade of modern international thought’. H Morgenthau, Scientific Man vs. Power Politics (University of Chicago Press, Chicago, IL, 1946) 113. See also JHH Weiler, ‘The Geology of International Law – Governance, Democracy and Legitimacy’ (2004) 64 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 547, 550. For a comprehensive overview, see Suganami, H, The Domestic Analogy and World Order Proposals (Cambridge University Press, Cambridge, 1989).

31 See, generally, Ch 13 of T Hobbes, Leviathan, edited by R Tuck (Cambridge University Press, Cambridge, 1996).

32 See in particular Ch XI of the Second Treatise: J Locke, Two Treatises of Government, and a Letter Concerning Toleration, edited by I Shapiro (Yale University Press, New Haven, CT, 2003) 178–87.

33 See eg Bk 1, Ch 7 of J-J Rousseau, ‘The Social Contract’ in V Gourevitch (ed), The Social Contract and Other Later Political Writings (Cambridge University Press, Cambridge, 1997) 52, discussion in R Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford University Press, Oxford, 2001) 197–225, and DS Grewal, ‘The Domestic Analogy Revisited: Hobbes on International Order’ (2016) 125 Yale Law Journal 618, 666–8, passim.

34 See, most extensively, I Kant, ‘Perpetual Peace: A Philosophical Sketch’ in HS Reiss (ed), Kant: Political Writings (2nd edn, Cambridge University Press, Cambridge, 1998) 93–130 and discussion in C Bottici, ‘The Domestic Analogy and the Kantian Project of Perpetual Peace’ (2003) 11 The Journal of Political Philosophy 392, 396–9 in particular.

35 On the international law side, see especially Ch 1 of L Oppenheim, International Law: A Treatise, vol 1 (3rd edn, Longmans, Green & Co., London, 1920). On the international relations side, see, most famously, Ch 2 of H Bull, The Anarchical Society: A Study of Order in World Politics (4th edn, Basingstoke, Palgrave Macmillan, 2012).

36 See eg Carr, EH, The Twenty Years’ Crisis 1919–1939: An Introduction to the Study of International Relations (2nd edn, MacMillan, London, 1946) 27–8 and discussion in Alvarez, JE, International Organizations as Law-Makers (Oxford University Press, Oxford, 2005) 1819, as well as Grewal (n 33) 628.

37 See eg H Morgenthau, Politics among Nations (Knopf, New York, NY, 1949) 398–406. See also critical engagement by Suganami (n 30) 99–100.

38 Suganami (n 30) 19.

39 Weiler (n 30) 550

40 On this account, ‘a legitimate social order is one which is objective, one that consists of formally neutral and objectively ascertainable rules, created in a process of popular legislation’. Koskenniemi (n 20) 71; and see further Koskenniemi (n 16) 4–7, and FV Kratochwil, ‘How Do Norms Matter?’ in M Byers (ed), The Role of Law in International Politics (Oxford University Press, Oxford, 2000) 35, 39–40.

41 Koskenniemi (n 20) 21–2.

42 See Collins (n 2).

43 T Poole, ‘Sovereign Indignities: International Law as Public Law’ (2011) 22 European Journal of International Law 351, 351–2 (emphasis added).

44 C Bottici, Men and States: Rethinking the Domestic Analogy in a Global Age (Palgrave Macmillan, Basingstoke, 2009) 20–1.

45 Ibid 26.

46 P Capps, ‘The Rejection of the Universal State’ in N Tsagourias (ed), Transnational Constitutionalism (Cambridge University Press, Cambridge, 2007) 17, 28–40; and see Ch 9 of Capps (n 19) 215–41.

47 Perhaps the clearest example being Austin’s view of international law as a form of ‘positive morality’. See Austin, J, Lectures on Jurisprudence or the Philosophy of Positive Law, edited by Campbell, R (4th edn, John Murray, London, 1873) 188, passim.

48 See further Collins (n 2) 181–2.

49 See eg H Bull, The Anarchical Society: A Study of Order in World Politics (4th edn, Palgrave Macmillan, Basingstoke, 2012, first published 1977) 44–9. Capps (n 19) also highlights both kinds of arguments. See also Grewal (n 33) 629–31, passim as well as Bottici (n 44) 2, passim.

50 See eg Hobbes (n 31) 13.12.

51 As Kant explains, ‘[t]he idea of international right presupposes the separate existence of many independent adjoining states. And such a state of affairs is essentially a state of war, unless there is a federal union to prevent hostilities breaking out. But in the light of the idea of reason, this state is still to be preferred to an amalgamation of the separate nations under a single power’. Kant (n 34) 113; and see commentary of Capps (n 19) 238–9.

52 See eg the critique of Lautepacht on this point: H Lauterpacht, ‘The Nature of International Law and General Jurisprudence’ (1932) 37 Economica 301, 304.

53 For example, P Weil, ‘Towards Normative Relativity in International Law?’ (1983) 77 American Journal of International Law 413.

54 See eg Georges Scelle’s theory of dédoublement fonctionnel or ‘role-splitting’ as set out in G Scelle, Précis de droit des gens: principes et systématique. Pt.2, Droit constitutionnel international (Sirey, Paris, 1934) 10–12, passim. For general commentary, see also R Collins, ‘The Problematic Concept of the International Legal Official’ (2015) 3-4 Transnational Legal Theory 608.

55 However, this is argued inter alia in T Bingham, The Rule of Law (Penguin, London, 2010) Ch10. See also P Burgess, ‘Deriving the International Rule of Law’, paper on file with the author.

56 See Burgess, ibid, and references cited therein, including S Chesterman, ‘An International Rule of Law?’ (2008) 56 American Journal of Comparative Law 331, 358; J Waldron, ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law?’ (2011) 22 European Journal of international Law 315, 317; McCorquodale, R, ‘Defining the International Rule of Law: Defying Gravity?’ (2016) 65 International & Comparative Law Quarterly 277, 290–2; Crawford, J, ‘International Law and the Rule of Law’ (2003) 24 Adelaide Law Review 3, 56; and Beaulac, S, ‘The Rule of Law in International Law Today’ in Palombella, G and Walker, N (eds), Relocating the Rule of Law (Hart Publishing, Oxford, 2009) 197223.

57 See, relatively recently, M Kanetake, ‘The Interfaces between the National and International Rule of Law: A Framework Paper’ in M Kanetake and A Nollkaemper (eds), The Rule of Law at the National and International Levels: Contestations and Deference (Hart, Oxford, 2016) 11, 20–2.

58 See, for instance, Beaulac (n 56) 204ff.

59 A good example being the extended treatment of McCorquodale (n 56).

60 See eg Chesterman (n 56).

61 Beaulac (n 56) 203–4.

62 Chesterman (n 56) 359–60. For similar views, see also I Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations (Martinus Nijhoff, The Hague, 1998) 213–14. Crawford (n 56) at 4, adopts a four-part formulation of the rule of law, adapted from Joseph Raz. For a ‘thicker’ four-part definition, including the protection of human rights, see also McCorquodale (n 56) 292.

63 Beaulac (n 56) 212–20. And see Y Shany, ‘No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary’ (2009) 20 European Journal of International Law 73, 74–75; Crawford (n 56) 10–12; and A Watts, ‘The International Rule of Law’ (1993) 36 German Yearbook of International Law 15, 37.

64 Watts (n 63) 28.

65 See eg Hurd (n 14) 367; Blum (n 7) 332.

66 For the latter conclusion, see the more nuanced account contained in McCorquodale (n 56) 296, passim.

67 Chesterman (n 56) 358.

68 On the difficulties of abstracting rule of law values out of context, generally, see recently P Zumbansen, ‘The Rule of Law, Legal Pluralism, and Challenges to a Western-centric View: Some Very Preliminary Observations’ in May and Winchester (n 13) 57–74.

69 See eg Nardin (n 17) 147–8.

70 Hurd (n 14) 366.

71 Ibid 369.

72 Collins (n 4) 125, passim.

73 Hurd (n 14) 394.

74 Ibid 393.

75 Ibid 366–7.

76 See eg D Dyzenhaus, ‘Hobbes and the International Rule of Law’ (2015) 28 Ethics & International Affairs 53; T Nardin, ‘Theorizing the International Rule of Law’ (2008) 34 Review of International Studies 385, 385–6.

77 J Waldron, ‘The Rule of International Law’ (2006) 30 Harvard Journal of Law & Public Policy 15, 21.

78 Ibid 23.

79 He develops this specific argument further in Waldron (n 56).

80 See eg Scelle (n 54).

81 See criticisms of Poole (n 43).

82 Nardin (n 76) 386.

83 See Chs 4–6 of Collins (n 2) and further discussed in R Collins, ‘International Law and the Analytical Tradition in Jurisprudence’ (2014) 5 Jurisprudence 265.

84 In this respect, though not in many others, I follow John Finnis in understanding the method of legal conceptual analysis as an effort to determine the ‘practically reasonable’ viewpoint. See J Finnis, Natural Law and Natural Rights (2nd edn, Oxford University Press, Oxford, 2011) 15; and see further on this point, Collins (n 2) Ch 5.

85 Nardin (n 17) 106, 183.

86 P Allott, ‘The Concept of International Law’ (1999) 10 European Journal of International Law 31, 44.

87 D Dyzenhaus, ‘Hobbes on the International Rule of Law’ (2014) 28 Ethics & International Affairs 53, 61.

88 In fact, Dyzenhaus is developing views he already advanced in answer to Waldron in an earlier, but shorter comment: D Dyzenhaus, ‘Positivism and the Pesky Sovereign’ (2011) 22 European Journal of International Law 363.

89 L Fuller, The Morality of Law (rev edn, Yale University Press, New Haven, CT, 1969) 39, passim. And for a commentary on Fuller’s account of the rule of law as a ‘non-instrumental’ good, see C Murphy, ‘Lon Fuller and the Moral Value of the Rule of Law’ (2005) 24 Law and Philosophy 239.

90 Brunnée, J and Toope, S, Legitimacy and Legality in International Law: An Interactional Account (Cambridge University Press, Cambridge, 2010) 7.

91 Thompson, EP, Whigs and Hunters: The Origins of the Black Act (Allen Lane, London, 1975)

92 For discussion see DH Cole, ‘“An Unqualified Human Good”: E.P. Thompson and the Rule of Law’ (2001) 28 Journal of Law and Society 177.

93 Koskenniemi (n 1) 494–509; Koskenniemi (n 22) 41, 45.

94 M Koskenniemi, ‘Constitutionalism as Mindset: Reflections on Kantian Themes about International Law and Globalization’ (2007) 8 Theoretical Inquiries in Law 9.

95 Koskenniemi (n 22) 48.

96 Nardin (n 17) 183.

97 Ibid 19–21, passim.

98 For an overview, see T Dunne, Inventing International Society: A History of the English School (MacMillan, London, 1998).

99 Nardin (n 17) 34–5.

100 See Oakeshott, M, ‘The Rule of Law’ in Oakeshott, M, On History and Other Essays (Barnes & Noble, Totowa, NJ, 1983) 119–64, 163, wherein he paints a picture of international engagements between states as entirely instrumental in character.

101 See, most extensively, Jackson, R, The Global Covenant: Human Conduct in a World of States (Oxford University Press, Oxford, 2000).

102 Nardin (n 17) 17.

103 Oakeshott, M, On Human Conduct (Oxford University Press, Oxford, 1975).

104 Oakeshott (n 100).

105 Oakeshott (n 103) 117–18.

106 Freedom, on these terms, ‘does not follow as a consequence’ of civil association, rather ‘it is inherent in its character’. Oakeshott (n 103) 175. See further D Dyzenhaus, ‘Dreaming the Rule of Law’ in D Dyzenhaus and T Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press, Cambridge, 2015) 234, 234–5, 248.

107 RB Friedman, ‘Oakeshott on the Authority of Law’ (1989) 2 Ratio Juris 27–40. See further, Nardin, T, The Philosophy of Michael Oakeshott (Penn State University Press, University Park, PA, 2001) 197–8.

108 RB Friedman, ‘What is a Non-Instrumental Law?’ (1992) 21 Political Science Reviewer 81, 83. On the difficulty in framing Oakeshott’s theory as entirely ‘non-instrumental’, particularly given Oakeshott’s debt to Hobbes, see Dyzenhaus (n 106) 257–8, and N Malcom, ‘Oakeshott and Hobbes’ in P Franco and L Marsh (eds), A Companion to Michael Oakeshott (Penn State Press, Pennsylvania, PA, 2012) 217, 228–30.

109 Oakeshott (n 100) 148.

110 See Friedmann (n 108) 82 and Oakeshott (n 103) 129, 161, 174–5.

111 Oakeshott (n 103) 129.

112 Ibid 131–3.

113 Ibid 133.

114 Nardin (n 17) 163–4.

115 See, in particular, Collins (n 2) Ch 3.

116 See Reus-Smit, C, ‘The Politics of International Law’ in Reus-Smit, C (ed), The Politics of International Law (Cambridge University Press, Cambridge, 2004) 14, 36–7.

117 On the connections between the ideal of the rule of law and the importance of, as well as ambiguities surrounding, the autonomy of international law, see Collins (n 4), as well as R Collins, ‘Autonomy’ in J d’Aspremont and S Singh (eds), Concepts for International Law: Contributions to Disciplinary Thought (Edward Elgar, Cheltenham, 2019). On the ambiguities surrounding the idea of law’s autonomy generally, see BH Bix, ‘Law as an Autonomous Discipline’ in P Cane and M Tushnet (eds), The Oxford Handbook of Legal Studies (Oxford University Press, Oxford, 2003) 975–87; and Unger (n 20) 52–4.

118 O Schachter, ‘The Nature and Process of Legal Development in International Society’ in RStJ Macdonald and DM Johnston (eds), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine, and Theory (Martinus Nijhoff, The Hague, 1983) 745, 747.

119 Nardin (n 17) 105–12.

120 In other words, this account would be more akin to a Razian than a Fullerian view of the rule of law. See Murphy (n 89).

121 See, principally, A Somek, ‘From the Rule of Law to the Constitutionalist Makeover: Changing European Conceptions of Public International Law’ (2011) 18 Constellations 567, 576, passim; and see further Collins (n 2).

122 H Lauterpacht, ‘The Place of International Law in Jurisprudence’ in E Lauterpacht (ed), International Law: Being the Collected Papers of Hersch Lauterpacht – Volume 2: The Law of Peace, Pt 1 (Cambridge University Press, Cambridge, 1975) 193, 208. Lauterpacht was making reference here to Holland’s assertion that international law was the ‘vanishing point of jurisprudence’. See Holland, TE, Elements of Jurisprudence (9th edn, Oxford, Oxford University Press, 1900) 369.

123 Lauterpacht’s views are sometimes interpreted as endorsing the end of a universal state, but his ambition was only to bring about the ‘realizable and certainly not infinite ideal of the Federation of the World conceived as a commonwealth of autonomous States exercising full internal independence’. See H Lauterpacht, ‘The Nature of International Law and General Jurisprudence’ in Lauterpacht (n 122) 1, 47 (emphasis added).

124 D Kennedy, ‘The Move to Institutions’ (1987) 8 Cardozo Law Review 841, 857–59.

125 See, eg, H Lauterpacht, ‘The Covenant as the Higher Law’ (1936) 17 British Yearbook of International Law 54. On Lauterpacht’s commitment to the constitutionalisation of international politics generally, see also Koskenniemi (n 1) 376–88.

126 Lauterpacht (n 123) 64–5.

127 See on this point, P Capps, ‘Lauterpacht’s Method’ (2012) 82 British Yearbook of International Law 248.

128 See, eg, A McNair, ‘International Legislation’ (1933–34) 19 Iowa Law Review 177, 178–9; and later CW Jenks, ‘The Conflict of Law-Making Treaties’ (1953) 30 British Yearbook of International Law 401. For commentary, see also C Brölmann, ‘Law-Making Treaties: Form and Function in International Law’ (2005) 74 Nordic Journal of International Law 383.

129 Brierly, JL, The Law of Nations: An Introduction to the International Law of Peace (2nd edn, Oxford University Press, Oxford, 1936) 4849 (emphasis added).

130 There are notable exceptions, of course, particularly (though not exclusively) in Germanic international law scholarship. For commentary, see Fassbender, B, The United Nations Charter as the Constitution of the International Community (Martinus Nijhoff, Leiden, 2009), especially the works he surveys at 27–51.

131 See, eg, Cassese, A, International Law in a Divided World (Clarendon Press, Oxford, 1986) 401–3; Cassese, A, International Law (2nd edn, Oxford University Press, Oxford, 2005) 66–7.

132 See, eg, PC Jessup, A Modern Law of Nations: An Introduction (Macmillan, New York, NY, 1952) 2–3, 8–12 on the defects of a sovereign-centred and decentralised legal order. See also his stress on function over form in his separate opinion in the South West Africa case: ICJ Reports 1966, 319, 411; and see also CW Jenks, ‘Craftsmanship in International Law’ (1956) 50 American Journal of International Law 32, and M Lachs, ‘Some Reflections on Substance and Form in International Law’ in W Friedmann, L Henkin and O Lissitzyn (eds), Transnational Law in a Changing Society: Essays in Honour of Philip C Jessup (Columbia University Press, New York, NY, 1972) 99–112.

133 See, eg, Alvarez (n 36) 585.

134 As Alvarez acknowledges, ‘Jus cogens and erga omnes obligations are products of the age of IOs [international organisations] precisely because they made real (or more real than ever before) the idea of a ‘community of states as a whole’ on which such hierarchical concepts could be built’. Alvarez, JE, ‘International Organizations: Then and Now’ (2006) 100 American Journal of International Law 324, 327.

135 See generally Alvarez (n 36) 217–44; Boyle, A and Chinkin, C, The Making of International Law (Oxford, Oxford University Press, 2007) 108–41.

136 For a number of perspectives on this trend, see Goldstein, J et al. (eds), Legalization and World Politics (MIT Press, Cambridge, MA, 2001).

137 For an extended discussion of this point, see R Collins, ‘Mapping the Terrain of Institutional “Lawmaking”: Form and Function in International Law’ in E Fahey (ed), The Actors of Postnational Rule-Making: Contemporary Challenges of European and International Law (Routledge, Abingdon, 2015) 27–46.

138 For a useful discussion, see S Chesterman, ‘The UN Security Council and the Rule of Law: The Role of the Security Council in Strengthening a Rules-based International System: Final Report and Recommendations from the Austrian Initiative, 2004-2008’ available at <https://www.iilj.org/wp-content/uploads/2017/08/unsc_and_the_rule_of_law.pdf>. And see also A Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (Oxford University Press, Oxford, 2011).

139 See, amongst a burgeoning literature, Tiemessen, A, ‘The International Criminal Court and the Politics of Prosecutions’ (2014) 18 The International Journal of Human Rights 444.

140 See inter alia J Klabbers ‘The Changing Image of International Institutions’ in J-M Coicaud and V Heiskanen (eds), The Legitimacy of International Organizations (United Nations University Press, Tokyo, 2001) 221–55, as well as many of the other contributions in the same volume, noting issues of accountability and perceived institutional biases.

141 See eg International Law Association, ‘Accountability of International Organisations’ in Final Report of Committee on Accountability of International Organizations, Berlin Conference, 2004) available at <https://ila.vettoreweb.com/Storage/Download.aspx?DbStorageId=1058&StorageFileGuid=04c9caf1-2834-4490-9125-7d9ba3683246>; International Law Commission, ‘Draft Articles on the Responsibility of International Organizations, with Commentaries’ in Report on the Work of Its Sixty-third Session (26 April–3 June and 4 July–12 August 2011) UN Doc A/66/10, Ch V, available at <http://legal.un.org/ilc/documentation/english/reports/a_66_10.pdf>.

142 Amongst the many recent contributions, see principally, J Klabbers, A Peters and G Ulfstein, The Constitutionalization of International Law (Oxford University Press, Oxford, 2010).

143 The literature here is now somewhat voluminous, but as an introduction, see principally N Krisch and B Kingsbury, ‘Introduction: Global Governance and Global Administrative Law in the International Legal Order’ (2006) 17 European Journal of International Law 1; and see the symposium which follows at 1–278 of the same edition; B Kingsbury, N Krisch and Stewart, R, ‘The Emergence of Global Administrative Law’ (2005) 68 Law and Contemporary Problems 15, and the rest of the symposium in the same issue, at 1–377.

144 The literature here is also quite extensive, but for a good introduction see Weiler (n 30) and, for a more recent and quite thorough survey, see E Benvenisti, The Law of Global Governance (Brill, The Hague, 2014).

145 Koskenniemi, M, ‘The Fate of Public International Law: Between Technique and Politics’ (2007) 70 Modern Law Review 1.

146 See inter alia N Walker, ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of Normative Orders’ (2008) 3 International Journal of Constitutional Law 373.

147 Koskenniemi, M and Leino, P, ‘Fragmentation of International Law? Postmodern Anxieties’ (2002) Leiden Journal of International Law 553.

148 I particularly have in mind, in this regard, China and Russia’s recent Joint Declaration on Promotion and Principles of International Law (25 June 2016) available at <http://www.mid.ru/en/foreign_policy/position_word_order/-/asset_publisher/6S4RuXfeYlKr/content/id/2331698>.

* Lecturer in International Law, University College Dublin. This article develops ideas and claims first set out in Ch 7 of R Collins, The Institutional Problem in Modern International Law (Hart, Oxford, 2016). Earlier versions of this article were given at the University of Virginia, September 2017, Osgoode Hall Law School, York University, 21 February 2018, and the University of Sydney, 5 April 2018. Thanks to the participants at these workshops, and to Christopher May, Weiran Kong, Patrick Emerton and Richard Joyce, as well as the two anonymous reviewers for their useful comments and feedback. As usual, however, responsibility for everything contained herein, particularly errors or omissions, lies solely with the author.

Keywords

Two idea(l)s of the international rule of law

  • RICHARD COLLINS (a1)

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