The Nature of International Law and the Rule of Law

Research on The Rule of Law

A major debate exists among legal scholars, politicians, and others as to whether international law constitutes binding, "real" law, particularly in light of the absence of a strong, centralized court or mechanisms for enforcement of the law against those nations or individuals that fail to comply with its mandates. Moreover, even if an international criminal court with strong enforcement authority were created, it could plausibly be argued that subjecting individuals to such a court violates principles of legality and the rule of law. The purpose of this paper is to examine the debates surrounding these two issues in international law. It concludes that international law is "real" law, because a strong central system of adjudication and enforcement are not necessarily defining characteristics of law. So long as some mechanisms exist sufficient to cause countries to comply with international law in most instances, this is sufficient to define international law as real law, even if those mechanisms of compliance enforcement do not exactly mirror methods of obtaining compliance in the domestic law context. In addition, this paper argues that it is possible for an international criminal court to be created and subject individuals to punishment without violating the rule of law, provided that the acts being punished were forseeably subject to punishment from the position of the person before the international criminal court at the time the acts were committed, and the punishment for the offense is not enhanced beyond the permissible punishment at the time the act was committed.

Is International Law "Real" Law

For many years, certain scholars have suggested that international law is something less than binding, real law because of an "enforcement problem." While these scholars have occupied different theoretical camps, for ease of reference this papers adopts the term "realists" to refer to these scholars from Canestaro, because they all share a common criticism of international law as suffering from an enforcement problem, thus making it something other (and less) than real, binding law. The "enforcement problem" consists of two related criticisms of the international legal system. First, realists assert that there is no central enforcement mechanism in the international community that can force compliance with international law or punish violators of international law, particularly against powerful nations. Realists view such an enforcement power and the ability to punish violations as essential to the nature of law, and because it does not exist in the international context, international law is not binding law, and it essentially politics by other means. A second, related, criticism of the realists stems from the lack of a neutral interpreter (like a judiciary) capable of rendering a definitive interpretation of the meaning of international law. The realists argue that because international law is often vague, countries are able to interpret international obligations in any way they see fit because of the lack of an authoritative interpreter, and thus the country interprets the law in a way to coincide with their own self interest.

As discussed, the first major realist objection to international law as real, binding law concerns the lack of a central enforcement mechanism to punish violations. Realists assert that true law, and true legal systems have such mechanisms as an essential component. Moreover, they argue that the lack of such an enforcement mechanism allows countries to violate international law when it is in their own natural interest to do so, often without any punishment whatsoever. They also point out that powerful nations are particularly capable of flouting international law when it conflicts with their national interest. Based on this, some even argue that nations do not feel bound by international law at all, and only comply with international because the requirements of the so-called law coincidentally coincide with the national interest of the nation.

Those who argue that international law constitutes real, binding law, who, again borrowing from Canestaro this paper will refer to collectively as "transnationalists", do not deny that international law lacks a strong, central enforcement mechanism. Rather, they persuasively attack the premise that the lack of a central enforcement mechanism is critical for international law to be considered real, binding law. First, they argue by analogy that the unenforceability of international law is not any different than certain types of domestic law that no one would seriously dispute is both real and binding. For example, when a United States citizen wins a civil case against the United States government, as a practical matter, the prevailing party has no real way to enforce the judgment other than the willingness of the government to acquiesce in it. Similarly, in criminal cases even where a defendant is acquitted there is nothing in terms of power, only self-restraint that prevents the government from flouting the acquittal and punishing the citizen anyway. While it could be argued that this is far fetched because the United States government routinely acquiesces to adverse legal decisions, the transnationalist can reply that nations routinely acquiesce to international laws as well. Thus, if we concede that domestic criminal law is real law, logically we can also conclude that international law is as well.

Moreover, transnationalists dismiss the absence of a central compliance enforcement mechanism in international law because other mechanisms exist which are capable of securing compliance with its mandates. The most obvious (if most troubling) of these mechanisms is a unilateral or multilateral use of force against nations as punishment for violations of international law. This is the most obvious punishment for a violation of international law because it is the most severe. It is problematic, however, because use of force can be used for reasons other than to sanction violations of international law. Moreover, it is quite possible that the country that has violated international law may be too powerful for use of force to be an effective sanction. Finally, the use of force raises the risk of committing international law violations by the very countries seeking to enforce international law against the offender.

Perhaps the most common mechanism for enforcing the provisions of international law comes from what D'Amato refers to as the deprivation of reciprocal entitlements. This theory posits that by choosing to exist as a country, nations accept a series of "entitlements" from the international community, and also agree to respect the equal entitlements of other nations. When a nation violates international law with respect to another nation, this can be viewed as a deprivation of an entitlement to the offended nation. In response to this deprivation, the offended nation, and other nations in the international community, then may choose to deprive the offending nation of the same entitlement, or of a different entitlement, in an attempt to bring the offending nation in line with international law. For example, if a nation A offended the notion of diplomatic immunity by arresting all of the diplomats of nation B that were present within their borders, under the theory of deprivation of reciprocal entitlements, nation B would have two options. First, it could deprive nation A of the same entitlement by arresting all the diplomats of nation A in its country. This is problematic however, because it seeks to punish a violation of international law by a commission of the same violation. Moreover, it arguably implicitly approves the violation by sending the signal that diplomats are, indeed, "fair game." The second, better option, available to nation B would be to deprive nation A of some other entitlement. This could be done for example, by the use of economic or trade sanctions against the offending country until it comes into compliance with international laws regarding diplomatic immunity. Moreover, the nation B could attempt to persuade other countries to join it in refusing to trade or provide economic support to nation A, thereby further coercing compliance. These types of entitlement deprivations are frequently used in international law.

A third mechanism, which is not directly an enforcement mechanism, but does cause countries to comply with international law, comes from a fear of losing respect and reputation in the international community. New technologies and a global economy have made nations of the world more interdependent than ever, and a loss of reputation in the global community can be particularly disastrous in such an environment. Thus, in order to avoid reputational harms countries are more likely to comply with international law because fear of protests by individuals, as well as pressure from non-governmental organizations, charities, and other countries, highlighting international law violations, because such activities can undermine the place of the nation in the global community. Some even argue that while countries at first begrudgingly accept international law to avoid these consequences, they soon become habituated to follow its mandates, and the eventually begin to view international law as something to be followed because it is right and just.

Realists have countered by arguing that despite the existence of these enforcement mechanisms, international law is still not real, binding law, because the mechanisms are not sufficient to ensure compliance in that countries still violate international law on some occasions. This argument is unpersuasive, however, which can be demonstrated by analogy. Most countries have a domestic law prohibiting murder that no one would dispute is a "real" law, which is backed up by the threat of a traditional central punishment enforcement mechanism. Despite this, individuals routinely commit murder, and while some are punished some are never solved and no punishment occurs. The fact that compliance with the prohibition against murder is not always perfect, and even the fact that some murders occur that go unpunished, does not undermine the binding nature of the law against murder itself. In the same way, the fact that international law is not always followed, and punishment is not always complete or perfect does not undermine the binding nature of international law. There will always be a gap between what people actually do and what they are legally required to do, is human nature itself, not a criticism of the laws they fail to follow.

There is considerable evidence that nations, even superpowers in times of national crisis, view international law as binding, and seek to conform their behavior to, and justify their behavior in light of it. Moreover, there are available mechanisms for enforcement of international law, as discussed above, that can be used to coerce compliance even though they don't mirror the mechanisms available for domestic law enforcement. Given that international law clearly shapes behavior, and its violations can be punished, international law can meaningfully be called real, binding law.

The second realist argument that international law is not real, binding law is that there is no central, neutral interpreter to render authoritative judgments on the meanings of its vague provisions. They argue that this leaves countries to interpret the law for itself, and they can do so in such a way that it allows them to take any action that it deems to be within their own national interest. This argument is more easily dealt with than the enforcement mechanism argument discussed above, however, because while it is true that there is no central interpretative body that provides definitive answers on the meaning of international law, there are, in fact, significant restraints on countries' individual interpretations of what the law means.

Transnationalists would agree with the proposition that international laws are often vague, and that there is now body that gives definitive interpretations of what that law really means. However, they deny that such a body is in fact necessary for international law to constitute real law because interpretations are in fact meaningfully constrained. In addition, they note that the lack of a definitive interpretation about meaning does not undermine the status of international law as real law. Again, they draw an analogy to domestic law in this context. Like domestic law (particularly with respect to broad laws, such as constitutional provisions), international law is vague enough that reasonable minds can differ as to its precise meaning. Thus, the fact that a law is subject to differing reasonable interpretations does not undermine international law's status, any more than it undermines the status of a vague provision of law in the domestic context.

Many transnationalists would assert that despite the ambiguities of international law, its provisions contain core meanings the understanding of which is shared by the countries of the world. But even if not persuaded by this claim, there exists constraints on interpretation that keep interpretations by individual countries within the bounds of reasonableness. First, while the laws may be subject to multiple interpretations as to meanings, only interpretations which are considered reasonable within the relevant "interpretive community" are reasonable. Thus, individual interpretations are restrained in the sense by what is considered a reasonable interpretation by the international community. While all countries may not agree on any one "true" interpretation, it is much more likely that they can all agree when an interpretation is entirely unreasonable. In the event that a country adopts an unreasonable interpretation leading to a violation of the law being interpreted, the international community has available to it the methods of obtaining compliance previously discussed above.

Second, even within the realm of reasonable interpretations, individual interpretations of international law are constrained by the interpreting country's considerations of both short-term and long-term interests, because of the "tit for tat" nature of international law. That is, when a potential reasonable interpretation may be in the best short-term interest of the individual country, it does not necessarily benefit that country to adopt that interpretation in the long run. That is because in the domain of international law the interpretation given to a law by a country in a given situation often comes to serve as precedent for other countries interpreting the same law in the future. What is a helpful interpretation for a country one day may be disastrous in the future as another nation uses that interpretation against them.

In sum, international law does not differ significantly from domestic law in that both are often vague enough to be subject do differing reasonable interpretations. Despite the lack of a central binding interpretive authority to state the meaning of a law, international law has constraints in place to limit available interpretations. These constraints are significant enough that international law may properly be called real law.

International Criminal Court and the Rule of Law

A second question in international law concerns whether, if an international criminal court were established, a defendant could successfully argue that being charged before such a court would subject him to new law in violation of the principle of legality, given that the rules of such a court would not precisely match the rules of his own country. The answer to this question could very well be yes, but the answer ultimately depends on the rules and procedures followed by the international court. Accordingly, it is necessary to understand the principle of legality in international law, the values underlying the principle, and what procedures such a court would have to follow to prevent it from running afoul of the principle of legality.

The principle of legality has been called the fundamental principle of law. It is recognized in almost every country in the world, though some nations have a stronger version than others. Several concepts have been recognized in various countries as comprising a part of the principle of legality. First, the principle includes the nearly universal idea that no act may be punished criminally if it was not a crime pursuant to a law binding on the actor at the time of the act. Second, no act can be punished if there wasn't law providing sufficiently clear notice that an act was criminal, at the time of the act. Third, the punishment imposed for the commission of a crime may not be greater than the punishment applicable to the actor at the time of the act. These three principles constitute the nearly universally recognized core of the principle of legality. Some countries have gone further, however, and have stricter rules considered a part of the principle. These include the idea that a person may not be punished by a court whose jurisdiction was not established at the time of the act, and the idea that a person may not be punished on lesser or different evidence than was allowable at the time of the act.

It is thus critical that any new court only hear crimes that were previously established crimes, binding on the defendant at the time of the act. So long as the crimes were crimes (whether under international or domestic law) binding on the defendant at the time of the act, and the defendant is not subjected to a more harsh penalty than was available under binding law at the time of the act, prosecution in an international court does not run afoul of the principle of legality. Some may argue that it violates the principle of legality to try offenses that occurred before the international court's jurisdiction was established in that court, even if the offense itself was already criminal. But this strict principle of legality that a person may not be punished by a court whose jurisdiction was not established at the time of the act is not followed as a part of the principle of legality in most countries, and has not become a part of customary international law. Moreover, there is a tradition of creating special international tribunals to hear acts after they occur, so it is reasonably foreseeable to a defendant at the time of his act that such a court may be created. This satisfies the core concern of the principle of legality to put the defendant on notice.

A second potential argument is that the international court could subject the defendant to punishment based on new or different evidence than was possible at the time of the act. This doctrine has not become a part of customary international law either, however. But related doctrines respecting the "procedural" rights of defendants has become a part of international law both by treaty and through customary international law. These due process rights include: the right to a speedy, impartial and public trial before an impartial tribunal that decides the case based only on the evidence, the right to be informed of the charges in a reasonably specific way through a written indictment, the right to counsel, the right to present a defense, the right to compel witnesses to testify, the right to confront the witnesses against the accused, a privilege against self-incrimination, and a ban on double jeopardy. In addition, the accused is entitled to a right to appeal and a right not to be punished in an inhumane or unreasonable manner. Provided these procedural human rights are recognized, and the accused is afforded due process and a fair trial, slight differences in the rules between the accused domestic courts and a new international court would not be enough to raise a successful argument that the accused has been subject to new law.

In sum, the principle of legality prevents an accused from being punished for an act that was not criminal under a law (whether domestic or international) that was binding on the actor at the time of the act. Moreover, the accused cannot be punished beyond the maximum punishment provided for the offense at the time it was committed. Thus, a new international court must follow these principles to satisfy the principle of legality. The principle of legality would not prohibit the new court from asserting jurisdiction over cases occurring before its creation, so long as the court has procedural rules designed to respect and recognize the procedural human rights designed to give the defendant a fair trial, as discussed above.

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