What Rule of Law Ideal is Fit for International Law?

This summer in Morocco my tour guide told me he does not want to leave the country but needs a foreign passport. Any foreign passport will do. As a Moroccan, he is subject to arbitrary arrest, detention, and harassment by the police, but a foreign passport will protect him. It will give him other benefits, such as access to bank loans and the ability to get a lucrative liquor licence for a restaurant, otherwise given only to government entities and to foreign passport holders. This situation is a stark reminder of the importance of the rule of law: that legal rules are applied equally, impartially to all, that individuals can claim and defend their rights via due process and access to justice through a system of courts and law enforcement independent of political influence.

These principles are not well-established in international law. Some notable differences between municipal and international law prompt people to ask whether they are relevant at all. Taking states as the main subjects of international law, one significant difference is that the mechanisms and institutions we associate with domestic rule of law principles will be weak or non-existent. Due to the reliance on self-help as a means of enforcement, weaker states have difficulty holding more powerful states accountable for legal violations. International courts lack compulsory jurisdiction except within particular treaty regimes, therefore even the fact of a violation of an international legal obligation is difficult to establish impartially. Also, the outsize importance of state consent means that some obligations of international law, such as those arising from the Rome Statute of the International Criminal Court, apply only to some states not others, partly in virtue of the idiosyncratic preferences of the Security Council, which has referral power to the court but exercises it selectively. Thus, the principles of generality, equality before law, and equal access to courts are mostly aspirational in the present context of international law.

In his new book Philosophy and International Law, particularly in Chapter 5, David Lefkowitz argue that international law as it exists today fails to exhibit fidelity to rule of law ideals but that it is worth considering how to make them a reality. He starts by reviewing the fascinating conceptual terrain of the rule of law as a moral ideal in contemporary legal philosophy. In the traditional understanding of the rule of law in the municipal context, Lefkowitz says, the practice of government must proceed in accordance with government by law, the supremacy of law, equality before law, an independent judiciary, and a culture of respect for these ideals among officials and subjects. This means that laws must be clear, prospective, public, stable and general, and they must not make contradictory demands of those they address. Officials must be exercise power only in legally permissible ways. Equality before the law requires that like cases be treated alike, which is compatible, in Lefkowitz’s view, with the law being discriminatory, i.e. not giving women the right to vote, as long as those who have the right to vote (men) are treated equally in the eyes of the law. The rule of law need not include human rights and democracy among its core features, although there may be a tight connection between them such that one cannot expect to obtain the rule of law in practice in countries which have a very poor record of human rights or fail to be democratic (Lefkowitz 2021: 82-83).

The fundamental value of the rule of law lies in the certainty and predictability of the rules, which contributes to individuals’ ability to make plans and rationally direct their lives. Ultimately, the rule of law exhibits respect for rational agency and autonomous choice. This respect can be understood either as the ultimate value that the ideal of the rule of law contributes to instrumentally, or as intrinsic to the ideal of the rule of law (Lefkowitz 2021: 86-87).

While most of the chapter is devoted to the difficult and necessary work of laying the conceptual groundwork for the rule of law principles, the last part is devoted to reflecting on international law’s rule of law credentials. International law generally meets the criteria that coercive authority is exercised through prospective, general, and publicly promulgated standards, especially given the increasing legalization via treaties of international relations in recent decades. However, Lefkowitz also shows that the international rule of law is defective in important respects. The tendency of the UN Security Council to legislate in secret generate rules that are not transparent. Fragmentation also threatens the condition of noncontradiction, as the rules of different legal regimes can come into conflict. Formal equality before the law is undermined by the leeway powerful states enjoy in complying to their legal obligations compared to their weaker counterparts. The supremacy of law is the weakest of all principles of rule of law due to the fact that the jurisdiction of most courts relies on state consent, and the fact that the Security Council operates unconstrained and unaccountable. Finally, some state officials believe that international law should also protect state freedom, whereas international law ought to operate mainly as a constraint on states. And when it comes to the relations of states to their own citizens, although some national courts operate on an internal principle of rendering domestic law consistent with a state’s international legal obligations, such a principle is applied inconsistently.

I broadly agree with Lefkowitz diagnosis of the rule of law failures of international law (Pavel 2021) but let me emphasize two areas in which I believe the failures are more significant. Our differences reflect diverging interpretations of the equality before the law principle and the role state autonomy must play within a conception of the international rule of law. First, what seems troubling about international law in its current version is not just the fact that powerful states belonging to a treaty regime can get away with more violations of other states rights and less compliance. What is also problematic is that certain rules do not apply to powerful states at all. The P5 in the Security Council will not refer themselves for prosecution before the International Criminal Court, which they have the authority to do for other states, or to the jurisdiction of the International Court of Justice (ICJ). Historically, the Security council has enforced decisions of the ICJ and other courts in the face of state resistance, but not when the P5 are the non-complying party. Equality before the law does not imply merely a requirement that whatever rules are in existence, they apply to the legal subjects equally, but that, at least certain kinds of fundamental rules apply to all, indiscriminately. Thus, I would depart from Lefkowitz’s claim that ‘equality before the law does not require that the law itself treat people equally, in the sense that it does not rely on morally dubious distinctions when it specifies the rights and duties subjects enjoy.’ (Lefkowitz 2021: 76) I think this is precisely what equality before the law does require, and historically it was the idea that kings, aristocrats, and public officials were not subject to the same laws as ordinary citizens that gave the rule of law impetus and became an engine of revolutionary change. This is why the Magna Carta has such an enduring effect on the contemporary conception of the rule of law with its insistence on due process and other protections for any ‘free man,’ and that the king himself must be bound by law. Brian Tamanaha confirms this understanding in his account of the emergence of the rule of law (see for example, Tamanaha (2004) pp.15-31).

In international law this means that the oversize importance of the doctrine of state consent in determining legal obligation also undermines the fundamental principle of equality before the law, when states refuse to give consent to or withdraw from treaties that should have a generally binding character, or when they refuse to grant courts jurisdiction. This inequality before international law compounds and worsens inequalities of power which pervade international politics and undermine the supremacy of international law as a body of rules meant to helps states coexist peacefully, coordinate to solve collective action problems, and cooperate for the achievement of common ends.

Second, Lefkowitz quotes approvingly Jeremy Waldron’s claim that states should not enjoy a presumption of liberty in international law because their value is only instrumental while individual liberty is valuable in itself. As officials of international law (legislators and administrators), states are not in the same position vis-à-vis international law as individuals are vi-a-vis municipal law. I think this much is true. But states are both officials and subjects of international law, and they are due deference (although not to the extent that some states claim), precisely because as subjects, they represent and protect the interests of their citizens and need latitude to set domestic policy to achieve their aims. As I show elsewhere, states too are entitled to a presumption of liberty, which must be carefully defined and protected in international law (Pavel 2020). And they also deserve, along individuals, the benefits of the rule of law.

Waldron draws a more radical conclusion from the disanalogy between states and individuals, namely that states are not entitled to rule of law protections tout court (Waldron, 2011). In other words, the ideal of the rule of law is misplaced as a standard of evaluation for international law. Lefkowitz does not embrace this more sceptical position. This is salutary, as rule of law standard are appropriate wherever we experience coercive power and legal authority, and international politics is increasingly the sphere in which this is the case.

The book showcases Lefkowitz’s careful, accessible yet sophisticated philosophical style of argumentation. It also shows how challenging it is to do evaluate international law from a philosophical perspective, because a lot of ground clearing is involved in setting the stage for any argument. The entire book is an exemplar in how to think carefully about the deep philosophical questions which international law raises.