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Towards the Rule of Law in International Relations”

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Towards the Rule of Law in International Relations” Copyright © 2001 by the American Society of International Law THE VISIBLE COLLEGE OF INTERNATIONAL LAW: “TOWARDS THE RULE OF LAW IN INTERNATIONAL RELATIONS” by Mr. Hans Corell* Mr. President, Distinguished Members of the Board, Madam Executive Director, Col- leagues, and Friends: It is a great honor for me to address the Annual Meeting of the American Society of International Law once more in my capacity as the Legal Counsel of the United Nations.1 I thank President Arthur Rovine and Executive Director Charlotte Ku for the kind invitation. The topic that I have chosen for this keynote address is “Towards the Rule of Law in International Relations.” I bring greetings from Kofi Annan, the Secretary-General of the United Nations. Al- though not a lawyer, Kofi Annan is very much focused on international law. Time and again, he has emphasized the importance of the rule of law, both at the national level and at the international level. In his Millennium Report last year, the Secretary-General emphasized that, if we take a long-term view, the expansion of the rule of law has been the foundation of much of the social progress achieved in the last millennium. He reminds us, however, that this remains an unfinished project, especially at the international level, and that our efforts to deepen it must continue.2 How does one approach, on an occasion like this, a topic that is so well known to the audience but not so readily understood by the general public, including their elected representatives? I have decided to assume tonight the role of the advocate and to approach the topic in a very simple, frank, and straightforward manner. The issue is of crucial importance to mankind, in particular, if we look beyond the immediate future. As always, I must make the customary disclaimer that the views expressed are my own and do not neces- sarily reflect the opinion of the United Nations. I have taken as a point of departure a reflection by the Secretary-General in his Millen- nium Report. I did the same last November when I spoke at a conference on the rule of law in international relations in Moscow. There seems to be an increasing understanding among many states that international relations have to be governed by international law.3 * Under-Secretary-General for Legal Affairs, the Legal Counsel of the United Nations. 1 The first occasion was in 1996. The United Nations in Crisis: Reflections from Within the Secretariat, 90 ASIL PROC. 324 (1996). 2 UN Doc. A/54/2000. The quotation is from paragraph 326. See also the Secretary-General’s Annual Report to the General Assembly, UN Doc. A/55/1, paras. 273–81. 3 My fellow keynote speaker at the opening of the conference in Moscow was Igor Ivanov, foreign minister of the Russian Federation. The following quotations from his speech on that occasion are noteworthy in this context: Whatever the differences in the views of States on the future world order, it is quite obvious that any international-relations architecture can be solid enough only if it is based on an appropriate inter- national legal foundation. I am firmly convinced that there are no obstacles that would prevent us from further developing international law and gradually filling the remaining gaps in this field based on the fundamental principles of the UN Charter. The United Nations should remain the main generator of legal norms in this field, governing essentially all spheres of international relations. 262 The Visible College of International Law 263 However, there are those who have a less positive attitude toward the creation of com- mon international legal norms. This attitude is sometimes found even in the United States. This fact is of great concern to many—including, in particular, many insightful Americans. A couple of weeks ago, I read Six Nightmares by Anthony Lake, National Security Adviser to President Clinton from 1993 to 1996. The book was published in October last year.4 In his book, Lake examines six scenarios that, in his view, each pose a threat to the safety of the United States. The point of departure in one of the scenarios is a quo- tation from Anatole France: “Strong nations cooperate to the harmony and wealth of the world. Weak nations are a perpetual cause of disturbances and perils.”5 Lake then goes on to discuss the perils and aspects of such weakness. His conclusion is that one of the greatest threats to building a world of democracies that respect the rights of their peoples and a world of free markets that are open to American goods is the accumulated weaknesses in many states.6 I could not agree more, but would, from my perspective, like to put special emphasis on one contributing factor to such weaknesses: the absence of, or poor state of, the rule of law. With respect to the rule of law at the national level, suffice it to say that it implies that within a state, the exercise of power in the public domain should be performed with full respect to the laws that apply.7 Everyone, including the head of state, the parliament, the government, the judiciary, and other authorities are bound by the constitution of the state and must act within the parameters set by the same. They are also bound by the statutory provisions enacted by the parliament and by rules issued at lower constitu- tional levels, be it by the government or other bodies entrusted with legislative power. Rule of law means also that the legislative bodies have to bow in respect to the very laws they have adopted. The fact that judicial instances and other public authorities in the exercise of their functions are subject to the existing law means that, unless this is specifically prescribed for certain cases, there is no room for discretion on the part of those who apply the law. On the contrary, what is required is an impartial and inde- pendent application of the law by the judiciary. Other state or local authorities are re- quired to apply the law objectively in accordance with its letter and intent. In short, authority in the public domain should be exercised “under the laws.” It goes without saying that the law that I refer to here must be adopted with full respect for applicable international standards in the field of human rights. The rule of law also presupposes that the application of the law is entrusted to persons with the necessary integrity, independence, and impartiality. Furthermore, the laws must be properly published and accessible to the general public. In this context, I would like to point to the fact that the United Nations makes great efforts in promoting the rule of law at the national level, especially through the “good governance” programs of the United Nations Development Programme and the United Nations High Commissioner for Human Rights. Evolution of global and regional processes will undoubtedly require further development and adapta- tion of international law. For that reason, we favour the most active involvement of scientists and experts, representatives of non-governmental organizations and civil society as a whole in this creative process. 4 ANTHONY LAKE, SIX NIGHTMARES (2000). 5 LAKE, supra note 4, at 215. 6 Id. at 234. 7 Sir Arthur Watts, The International Rule of Law. 36 GER. Y.B. INT’L L. 15 (1993). This writing provides an excellent overview of the questions relevant to the topic. See also IAN BROWNLIE, THE RULE OF LAW IN INTERNATIONAL AFFAIRS: INTERNATIONAL LAW AT THE FIFTIETH ANNIVERSARY OF THE UNITED NATIONS 1–17, 213–28 (1998). 264 ASIL Proceedings, 2001 The principle of the rule of law is also applicable at the international level, or more specifically, in international relations. According to the preamble of the Charter of the United Nations,8 the peoples of the United Nations are determined “to establish condi- tions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” The Charter states that one of the purposes of the United Nations is “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”9 Another purpose is to achieve international cooperation “in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”10 More detailed provisions on pacific settlement of disputes appear in Chapter VI of the Charter; and, as you know, one of the six principal organs of the United Nations is the International Court of Justice. Efforts aimed at enhancing the rule of law in international relations encompass both the field of lawmaking as well as acceptance of, and respect for, international law by all states. Moreover, they should be accompanied by increased encouragement of the dis- semination and wider appreciation of international law. During the twentieth century, international law has been developed both at the uni- versal and regional levels. It has been incorporated in a great number of universal, regional, and bilateral treaties. The efforts by the United Nations alone in this field have led to the elaboration of hundreds of multilateral treaties dealing with essential issues of inter-state relations, as well as to the individual rights to which human beings are entitled in their own countries, to the protection of the environment, and to the regulation of commerce and trade. This process has not only put custom in writing but has also allowed all members of the international community to participate in the formulation of international law.
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