Introduction
There are few doctrines more sacrosanct to the sphere of international human rights law than that of the rule of law. Its fundamentality is demonstrated by its inclusion in an array of mission statements and supranational bodies, ranging from the United Nations (which associates the principle with its basic functions,)[1] to the African Union (which similarly places the doctrine at the centre of its transformational efforts.)[2] Indeed, quantitative measures of the rule of law might even be used as a means of ranking the development status of a given nation[3] thereby serving to underscore its importance. Additionally, the width of the doctrine’s definition is further evidence of its central position, used often as a shorthand for a bundle of practices that are regarded as being part of an overwhelming deontological good.
However, it is not necessarily true that a given doctrine, however highly regarded, will be translated into practice. Instead, it might be argued that contemporary international law is more accurately described as a function of realpolitik than by adherence to any given doctrine.[4] It is this doctrine that I seek to explore further; first, by viewing the rule of law through the lens of contemporary populism, and second, by considering the avenues which may be taken to address emerging threats to the rule of law.
Contemporary Populism and the Rule of Law
One of the greatest changes to have beset international law in recent years is the sharp growth of populism. The current President of the United States appears to have rejected the international democratisation model espoused by previous administrations in favour of courses of action which might even amount to the commission of war crimes.[5] Similarly, the Russian state has long rejected the rule of law as an overarching duty of the state.[6] Across the Middle-East, various theocracies and autocracies provide their own competing imperatives, often antithetical to even basic formulations of the rule of the law with seeming impunity.[7]
These changes and ongoing resistances to the rule of law arguably demonstrate a mismatch between the goals and principles of international jurisprudence and the realities of power in the 21st Century. Indeed, this is the crux of populism: there is no need to appeal to higher principles if those higher principles will not aid in the securing of power. Instead, even the most securely seated democracy may fall prey to the reality that principles have never and will never win elections.
The fact of the matter is this: votes win elections–and, if it is more effective to eschew a principle than to adhere to it, those seeking power will be highly motivated to take the former course rather than the latter.[8]
Whilst such a phenomenon is by no means new, the birth of modern international law can be attributed to a resistance to the potential terrors of populist rule[9]. Arguably, it has become apparent in recent years that even the mere appearance of commitment to the rule of law is no longer a prerequisite to power. Instead, such ideals appear to be more often mischaracterised as the reserve of ivory tower jurists or as an eccentricity of global liberalism.[10] However, there is perhaps a divine irony in this development; for the rule of law stands diametrically opposed to elitism via its emphasis on equality and balanced relationships of power.
Since the rule of law is argued here to be so important, and yet appears to be losing relevance in 21st Century politics, an explanation might be readily (easily?) demanded. But the intricacies of populism are numerous and complex. It might be asserted that a disconnect between concepts like the rule of law and the choices of voters at the ballot box has occurred. Indeed, it only takes a glance at the UK to see this assertion play out: both the triggering of Article 50 as a means to enact Brexit in 2017,[11] and the proroguing of Parliament in September 2019[12] have played out well for their instigators in political terms despite direct assertions from the judiciary that such actions were contrary to the separation of powers (and thus the rule of law). Cementing the ironic status of these actions again is the fact that those seeking to eschew the rule of law in such a manner, exhibit traits which can be juxtaposed with the doctrine. Whilst the exact limits of the rule of law are difficult to determine with certainty, it is apparent that accountability for action stands as a central principle.[13] However, accountability for actions taken to subvert the role of law appears to be absent from the political stage. The same can be said of the basic tenet of access to justice: rather than accepting the role of the judiciary in a healthy democracy, such institutions are vilified by public figures who appear willing to dismiss the application of collective centuries of jurisprudence as unpatriotic or even treasonous.[14]
Is this the Age of Terminal Politics?
Whilst the above indictment might be read as indicating that the rule of law has indeed been usurped, it can be argued that it might instead serve as a warning. It is a truth easily forgotten that there exists no universal principle stating that the rule of law cannot subverted, ignored, forgotten or destroyed.[15] Instead, all of these phenomena can and so occur. It can thus be argued the necessary response is one which properly ensures that the rule of law is maintained, protected and promoted. A number of key proposals can be made to this end.
Firstly, it is apparent that political forces have developed across numerous jurisdictions, as indicated above, and that the accumulation of personal power or wealth is privileged over upholding the duties of their office. Problematically, this includes the requirement to protect the rule of law whilst occupying such positions of influence and authority. This is arguably an indication that stronger abilities are required to enforce the duties of public office.
It is often posited that regulation of standards within public office runs contrary to the principle of sovereign immunity.[16] However, this fails to properly evaluate the reasoning for such immunity in the first place, namely, to permit those in office to represent the state without fear of repercussion for the actions they take during that representation. However, such a principle does not state that those in office may do exactly as they wish – that they might act to undermine the institutions that they have pledged to uphold.[17] Indeed, it can be asserted that if a principle provides the ability to knowingly and ostensibly depart from the rule of law for any given reason, then that principle requires re-evaluation.[18] To do otherwise is to undermine the rule of law itself – to state that there are no repercussions for abuse of position and that even the basic constitutional building blocks of a given democracy are negotiable.[19] Indeed, it is often a favoured practice of the global North to decry the lack of the rule of law in one nation of the global South or another.[20] If such opinions are to be legitimised, then it follows that a nation which is able to codify the rule of law and create a framework of laws in order to protect it, should do so.
Secondly, it is becoming increasingly evident that isolationist politics are having a detrimental effect on the ability of both individual nations and supranational organisations to promote the spread of the rule of law.[21] For instance, despite the recent reformation of the UN Human Rights Committee, its efficacy at promoting its mission remains doubtful. Both the withdrawal of the US from the Committee after an all-too-brief foray and the persistent denouncement of the Committee’s work by other states indicates that even small domestic political benefits will be favoured over efforts that spread the rule of law (amongst other human rights efforts.)
It is often asserted that the motive of spreading the rule of law is simply a veiled threat of imperialist action. However, such an assertion is based on the assumption that the only model of the rule of law is one which is imposed upon a nation.[22] To the contrary, it is becoming increasingly clear that before a given nation can engage in any type of effective state-building, it must first have dealt with its immediate needs.[23] It is for this reason that any state that preaches adherence to the rule of law must re-evaluate its own position with regard to helping those nations with their immediate needs. It is, after all, an acknowledged truth that the rule of law is a transnational concept: a blueprint for good governance which transcends borders and should be pursued in all situations.[24] To fail to aid any given state in achieving a position from which the rule of law might be established is thus hypocritical. Indeed, if an imperative like the rule of law is important, it is as important for someone living in Kaya, Burkina Faso, as it is for someone living in Birmingham, England. Thus, for a nation to act out of true respect for the rule of law, it must order its affairs in a manner which reasonably aids the exportation of the principle – be it via trade, aid, etc.
It is thus demonstrable that if the rule of law is to be regarded as an imperative, rather than a principle of convenience, respect for it must be demonstrated with far more enthusiasm–both at home and abroad.
Conclusion
In summary, it would be foolhardy to ignore the political developments of contemporary history. It is becoming increasingly apparent that there is little need for those in power to adhere to the tenets of the rule of law, as demonstrated by a number of high profile derogations from the principle. This indicates that changes will be necessary to ensure that even basic elements of liberal democracy are protected. In particular, it is notable that there appear to be few repercussions for those willing to ignore their duty to adhere to the rule of law domestically, and this lack of attention is being realised at a global level.
This need not be a terminal decline, however. Instead, the rule of law needs to be implemented and maintained in a way which properly respects its fundamental nature, so as to distance and protect it from the temporary effects of the political tides. To do otherwise would be a dangerous form of laziness indeed.
Naseem ‘Naz’ Khan is an LL.M. student at Durham University. He has a strong interest in International Human Rights law and Taxation
[1] United Nations, ‘United Nations and the Rule of Law’ (UN, 2019)
[2] African Union Commission, ‘Agenda 2063’ (AUC, 2015) 2.
[3] World Justice Project, Rule of Law Index: 2017-2018 (WJP, 2018) 10.
[4] System principles based on practical rather than moral or ideological considerations.
[5] Robin Wright, ‘Trump’s baffling plan to pillage Syria’s Oil’ (New Yorker, 20 October 2019)
[6] Maria Popova, ‘Putin-Style “Rule of Law” & the Prospects for Change’ (2017) 146(2) Daedalus 64-75, 65.
[7] Hossein Esmaeili, ‘The Rule of Law in the Middle East’ in J Silkenat et al. (Eds.) Jus Gentium: Comparative Perspectives on Law and Justice (Springer, 2014)316.
[8] Yannis Papadopoulos, ‘Populism, the Democratic Question, and Contemporary Governance’ in Y Meny, Y Surel (Eds.) Democracies and the Populist Challenge (Palgrave Macmillan, 2002) 46.
[9] Bardo Fassbender, Anne Peters (Eds.) Oxford Handbook of the History of International Law (OUP, 2012) 2.
[10] Bojan Bugaric, ‘Populism, liberal democracy, and the rule of law in Central and Eastern Europe’ (2008) 41(2) Communist and Post-Communist Studies 191-203. 192.
[11] R (Miller) v Secretary of State for Exiting the Union [2017] UKSC 5.
[12] R (Miller) v The Prime Minister [2019] UKSC 41.
[13] World Justice Project, ‘What is the rule of law?’ (WJP, 2019)
[14] Nicky Woolf, ‘Why the hell is Trump angry at a “treasonous hoax” he claims “completely exonerated” him?’ (New Statesman, 10 May 2019)
[15] Todd Landman, Human Rights and Democracy: The Precarious Triumph of Ideals (Bloomsbury, 2013) 5.
[16] William Baude, ‘Sovereign Immunity and the Constitutional Text’ (2017) 103 Virginia Law Review 1-30, 21.
[17] Erwin Chermerinsky, ‘Against Sovereign Immunity’ (2001) 53(5) Stanford Law Review 1201-1224, 1202.
[18] Peter van Lochem, ‘Legislation against the rule of law – an introduction’ (2017) 5(2) Theory and Practice of Legislation 95-100, 98.
[19] Ibid. 97.
[20] Bojan Bugaric, ‘Populism, liberal democracy, and the rule of law in Central and Eastern Europe’ (2008) 41(2) Communist and Post-Communist Studies 191-203. 192.
[21] Mathew Davies, ‘Rehetorical Inaction? Compliance and the United Nations Human Rights Council’ (2010) 35 Alternatives 449-468, 450
[22] Thomas G Weiss, ‘Principles, Politics and Humanitarian Action’ (1999) 13 Ethics & International Affairs 1-22, 9.
[23] Ama Annan, ‘Bureaucracy and law and order – Comment’ in Julio Faundez, Good Governance and Law: Legal and Institutional Reform in Developing Countries (Palgrave Macmillan, 1997) 74.
[24] Pauline C Westerman, ‘The rule of law as export product’ (2017) 5(2) Theory and Practice of Legislation 171-185, 176.