The ESIL Interest Group History of International Law held its pre-conference workshop on "The Rule of Law and International Law in Historical Perspective" at the University of Goettingen on 3 April 2019.
The presenters moved backwards in chronology, with Denise Wohlwend (University of Fribourg (CH)) exploring the recent past of the ‘rule of law’ concept within the United Nations. The concept was established as an UN priority at the World Summit in 2005 (that famously also birthed the concept of R2P), which led to the founding of the rule of law assistance unit in the Secretariat and a series of debates in the 6th Committee of the General Assembly. Predictably, the fact that there is no agreed definition of what ‘rule of law’ means led to a series of debates within the committee as to what precisely the concept entails. While some states saw it as one of the main principle of political morality, others favoured a more legalistic approach and insisted it was primarily about the foundations of a functioning legal order, such as states following court decisions, the separation of power or adherence to international law. The more detailed the debates got, the more disagreements appeared: should the rule of law be seen as a key tool to establishing stability in transitional justice processes, or does that denigrate the concepts since it should always be seen as a value in itself? Wohlwend ended by suggesting the framework of a ‘contested concept’ to further the debate while acknowledging the obvious disagreements. In a lively and well-informed exchange with the presenter, Hannah Birkenkötter (Humboldt University Berlin) pointed out that a lot of the real action on the rule of law was not in the GA debates, but the annual reports of the General Secretary, and that the secretariat had managed to hide a number of activities under the rule of law label that would otherwise have been controversial among member states. Both agreed that ‘rule of law’ seems to have replaced the earlier ubiquitous use of ‘democracy’, perhaps since it was deemed more appropriate to a post-Iraq War world.
The next presenter, Premislaw Tacik (Jagellionian University, Cracow), explored the ways in which the ‘rule of law’ concept has been employed in the jurisdiction of the European Court of Human Rights. Given the traditional disputes with Russia, but especially the more recent conflicts with the governments in Poland and Hungary, this is a highly political question. Tacik argued that the Court avoided legal theory on the issue, but often invokes the preamble of the Convention as a ‘guiding principle of interpretation’. In practice, this can mean both the identification of the rule of law as basic equality before the law and the provision of legal protections, but also the endorsement of ‘thick’ interpretations of the concept that see the rule of law as the guarantor of democracy and human rights. In the discussion, session chair and IG convenor Jan Lemnitzer (University of Southern Denmark) noted that the court seemed to sometimes engage in the defence of lofty principles while at other times focused its decisions on seemingly small procedural details. Tacik agreed that we need a conceptual bridge between both levels, since in reality they can not be separated in the court’s struggle with those governments that are determined to disrespect the rule of law.
In the second panel, Ryan Mitchell (Chinese University of Hong Kong) explored the political thinking of Hans Kelsen and pointed out that scholars tend to focus too much on his early writings establishing a vision of the rule of law built around the pacta sunt servanda principle, while ignoring his later works. Here, Kelsen needed to deal with the tension that he supported the Nuremberg trials and the ideas behind them, but that his endorsement of a legal system that is capable of defining a new crime (aggression) and establishing individual guilt of those who had committed it before the binding definition meant a real crisis for his system of legal thought. After initially publishing rather poor arguments such as that those who committed particularly horrific crimes lose the right not to be prosecuted in dubious ways, Kelsen changed his thinking (partly influenced by his controversial positions during the Korean War) and now highlighted the fact that a norm without a sanction is not a norm in a meaningful sense.
Finally, Alan Nissel began by pointing out that the history of arbitration as it currently stands focuses on a small number of prominent cases involving the United States or Britain. He argued that the large number of cases in Latin America in the 19th and early 20th century are particularly revealing since they often involved disputes between Western investors or creditors and local interests. The pattern that emerges upon a closer look is a rule of law mask for capitalist interests that strongly favoured European or American investors while expecting the locals to be pleased that arbitration had begun to replace armed state intervention. These developments are not just of historical interest since the logic employed in these cases became highly influential in the formation of the modern doctrine of state responsibility, a cornerstone of contemporary international law. As Jan Lemnitzer pointed out in his panel summary, this type of research is particularly welcome since it add to our empirical foundation for two separate developments in our field: a rethinking of the history of arbitration, and a lifting of the boundary between public international law and the history of private international law and investment disputes.
The next meeting of the IG History of International Law will take place just before the Annual conference in Athens in September and look at ‘New Histories of Sovereigns and Sovereignty’ – the call for papers is still open until 30 April!