The International Rule of Law Time After Time: Temporary Institutions Between Change and Continuity
© T.M.C. Asser Press and the authors 2015
Mónika Ambrus and Ramses A. Wessel (eds.)Netherlands Yearbook of International Law 2014Netherlands Yearbook of International Law4510.1007/978-94-6265-060-2_44. The International Rule of Law Time After Time: Temporary Institutions Between Change and Continuity
(1)
Tilburg University, Tilburg, The Netherlands
Abstract
The rule of law has emerged both on the domestic and international levels as a promise of longstanding democracy, economic development and peace. On both levels, the rule of law is often associated with the longstanding character of institutions and the predictability of rules, meaning that ‘citizens are entitled to laws that are neither murky nor uncertain’. However, does this always mean in practice that the rule of law can only be concretized by laws and legal institutions that last forever? More specifically in the international context, can we guarantee the consolidation of the international rule of law through the coexistence of both permanent and temporary institutions and instruments? In this chapter, I analyse the meaning of the rule of law at the domestic and international levels and discuss its complex relationship with time. I argue that the past, present and future of the rule of law can be, in some cases, united by the use of temporary institutions such as international criminal tribunals or truth commissions, rules and measures. Temporariness can be essential to react swiftly to humanitarian crises, provide transitory justice, gradually concretize the rule of law in fragile democracies, and adapt legal orders to evolving economic and political circumstances.
Keywords
Rule of lawInternational rule of lawTemporary legislationTemporary institutionsInternational criminal tribunalsLegal certaintyPredictabilityTransitory justiceSunset clausesTruth commissionsTime and lawSofia Ranchordás is Assistant Professor at Tilburg Law School, The Netherlands. She would like to thank the Editorial Board of the Netherlands Yearbook of International Law and the anonymous reviewers for useful comments and insights.
4.1 Introduction
In times of far-ranging social upheavals, Arab Springs that accelerate the arrival of turbulent summers in neighbouring countries, and terrorist groups that submerse recent and fragile democracies in winters of religious intolerance never experienced before, international law seeks to offer certainty, stability, and predictability. In both times of war and peace, international law aims to provide a balance between the need to guarantee stability at different levels and the urge to react to crises, evidencing what human life is about: ‘a permanent struggle between good and evil, between our capacities of self-improving and self-harming’, between the need to hold on to the past and the desire to move forward.1 This desire to achieve or reinforce the legal certainty and predictability of international rules implies, first of all, the submission of national legal orders to law. In the past few decades, international law seems to have joined forces with the rule of law—a once domestic political/legal ideal that is now being globally promoted and has acquired an important role in the international area, notably in the context of democratic transitions.2
The rule of law has emerged in the international context as the necessary means to support economic development,3 peace and security and as a crucial component of the administration of justice.4 The definitions of the rule of law vary between its perception as a safeguard against arbitrary governance, the requirement that a government exercises its power through the application of general rules to the defence of property rights.5 The meaning and application of the rule of law in the international arena are still contested nowadays. However, the international rule of law may open the path to peace in post-conflict scenarios, enhance the primacy of human rights over dubious domestic arrangements and offer the political and legal stability and consensus that are missing elsewhere.6
International law is often regarded as a source of longstanding rules. Temporary rules and institutions have nonetheless been used over time, namely in exceptional circumstances. Think of the temporary peace operations in Kosovo or in East Timor, the international criminal tribunals from Nuremberg to Yugoslavia or even the multiple transitory justice programmes designed to promote the rule of law internationally. Temporary institutions and rules offer an alternative to an all-or-nothing solution, which may be a realistic option for developing countries and post-conflict states.
The Nuremberg Military Tribunal was one of the first examples. This temporary institution was generally seen as ‘an experiment, almost an improvisation’ that went beyond existing legal provisions and treaties, requiring ‘international law to be written backwards’ to incorporate the war-making acts of the Nazi government and the crimes perpetrated against the German people by the dictatorship and the extermination of citizens on grounds of race.7 Instead of remaining bound to the past and the principle that ‘a man must not be punished for an act which did not constitute a crime at the time when it was committed’,8 the Tribunal established a new and temporary relationship with the past for the sake of justice. The Nuremberg Tribunal ensured that the perpetrators of the mentioned crimes were judged and convicted, not allowing them to hide behind a distorted curtain of legality.
The legitimacy of the Nuremberg Tribunal and other international criminal tribunals is often explained by the analogy with military tribunals and the fact that the international arena requires different rules from the ones applied on the domestic level.9 In addition, temporary tribunals are exceptional solution-providers conceived to provide relief to victims of often unforeseeable crimes. Despite these arguments, one may wonder whether the temporariness of these tribunals and the possibility to ‘write law backwards’ are not contrary to the idea of legal stability. Or are temporary institutions in fact essential to build a lasting international rule of law, particularly in post-war scenarios?
The Geneva Convention of 12 August 1949 relative to the protection of civilians in time of war appears to be one of the legacies of the Nuremberg Trials. However, the ability of these temporary institutions to consolidate the rule of law in more recent post-war scenarios has also been criticized. In some cases, temporary institutions are deemed to remain limited to ‘the spaceship effect’: ‘they arrive, do their business, and take off’, leaving the domestic population confused as what to do next.10 While this may be congruent with the (international) rule of law if the demand for justice is merely temporary—as in the case of Nuremberg—in other cases, where there might be a more longstanding demand for the rule of law, it might be important to ask whether permanent institutions should be preferred.
In this chapter, I acknowledge the above-raised dilemmas regarding the complex relationship between temporary institutions and the idea of stability that flows throughout international law. I argue nevertheless that, with the resemblance of what happens on the domestic level, temporary institutions and rules can actually promote the international rule of law, providing at first transitory solutions for the long-term achievement of a stable rule of law. To wit, the temporary certainty offered by transitory institutions can be a more solid alternative to the dream of a Western rule of law that might take years to arrive or be built on pillars of sand.
They can do so not only for the sake of justice in the specific case of criminal tribunals but also to ensure that the promotion of the rule of law in post-conflict scenarios can be adapted to local circumstances. Under such circumstances, the establishment of temporary institutions can be beneficial since they can be easily evaluated and reshaped according to the evolving local political and social circumstances. This can avoid, for example, a pure transplant of a Western rule of law to countries that are still struggling to establish a stable democracy.
This chapter aims mainly to explore how the international rule of law is affected by the existence and creation of temporary rules and institutions: are they a threat to the rule of law or rather a necessary element to ensure that the rule of law continues to evolve together with society? In this chapter, I argue that in exceptional circumstances such as in post-conflict scenarios, temporary institutions and temporary rules may assist not only the promotion but also the consolidation of the rule of law. I also discuss the challenge of finding the different dimensions of the promotion of a global rule of law and the need to achieve a compromise formula for the implementation of the rule of law. This ‘formula’ would combine temporariness with the ability to welcome the response and feedback from recipients, thus providing room for learning and adaptability to the evolving circumstances.11
My line of argument fits the body of literature that has criticised institutional transplants of the rule of law deprived of any effort to customise it to the local political and social environment.12 I start out by analysing first the meaning of the rule of law and the international rule of law (Sect. 4.2.1) and the role of time in international law (Sect. 4.2.2). The relationship between time and law permeates the whole discussion: in international law, the past is a decisive element for obtaining consensus in the present and future.13 Time and international law have a multifaceted relationship: time can be a building block in the case of customary law, an interpretation and consensus-gathering tool, but ‘what comes afterwards’ is also an important dimension of temporariness that might justify the suspicion against temporary rules and institutions. Although international tribunals or, for example, interim measures are temporary, their decisions are definitive and will endure after the extinction of these institutions. The focus of the paper shall not be placed specifically on international tribunals—which are only here referred to as illustrations of the main arguments—but rather on the contribution of temporary institutions to the concretization of the international rule of law. I relate the first part of this chapter to an important element of the rule of law on both the domestic and international levels: legal certainty (Sect. 4.2.3). There is a widespread consensus that the rule of law must offer continuity and predictability in order to be effective and meaningful. But should this always be the case? ‘One size fits all’ solutions might be undesirable when it comes to the promotion of the rule of law abroad and offering swift responses to humanitarian crises. In Sect. 4.3, I discuss the importance of temporary rules and institutions for the development of the rule of law and argue that temporariness can be a stepping stone to the future concretization of a solid domestic and international rule of law.
4.2 The (International) Rule of Law as a Source of Legal Certainty
4.2.1 The Rule of Law: Here, There and Everywhere?
Both at the national and international levels, the rule of law has been used for different purposes, in war, peace and post-war scenarios and given uncountable definitions. However, the rule of law appears to be everywhere and is often prescribed as the remedy for all ills. At the international level, we witness that the concept of the rule of law ‘is more easily invoked than understood’: although states seem to invoke it, this has not precluded them from turning their backs to it when it no longer suited their interests, revealing a lack of understanding of what the rule of law truly entails.14 This has occurred so often and so incoherently that the rule of law risks becoming meaningless.15
The ‘colours of the flag of the rule of law’ have flown over the UN field workers in different countries in Africa, symbolising an effort to ‘drive off spectres of civil strife and criminal autocracy, to rescue peoples from the rhythm of revenge and bring them back into the law’s delay of freedom and human rights’.16 In some cases this flag was erected too quickly, without considering the post-war scenario and its inherent complexities. In other cases this flag was a mere symbol to which little value was attached. The (international) rule of law—even if it is in many cases a mere symbol—is worth discussing, promoting and keeping since although the ideal of an international rule of law might not bring immediate international order, it confers substance and ‘attractive force’ to international law.17
4.2.1.1 The Rule of Law at Home and Abroad
The idea of the rule of law has multiple translations with more or less equivalent significations (Rechtsstaat, État de droit, stato di diritto, Estado de Direito). The German term Rechtsstaat, for example, refers to a theoretical and ideological trajectory from enlightened absolutism to a self-governed society under law.18 The Anglo-American term ‘rule of law’—which shall be used throughout this chapter—concentrates rather on the executive top of the state, with its bureaucracy and methods, placing more focus on parliamentary sovereignty.19 The rule of law encompasses multiple dimensions, concepts and levels that imply significant institutional complexity both at the international and domestic levels.20 Dicey’s classic study on the rule of law at the domestic level refers to three dimensions: ‘the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power’, ‘equality before the law’ including the sovereign, and ‘the general principles of the constitution [that] are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts’.21
Although the rule of law might sound like a tautological concept, its meaning is far from being self-evident and remains highly contested, varying from thin and thick conceptions. A basic conception of the rule of law conceives it as the idea of a ‘system in which law is able to impose meaningful restraints on the state and individual members of the ruling elite.’22 Beyond this concept, the rule of law can be reduced to thin and instrumental perceptions of the rule of law as the ‘law – good or bad – that works’. However, if we reduce the rule of law to procedures of law rather than to its substance, are we accepting that the rule of law can be a non-democratic principle, compatible with extreme poverty, as long as it allows law enforcement to work? Or should the rule of law be freighted with values?23 These questions take us to the ‘thicker conception’ of the rule of law that incorporates notions of political morality, fairness, gender roles, social justice and human rights.
The thicker conception of the rule of law is a key element in sustainable political and economic development, promoting justice, and rendering ruling bodies institutionally and normatively accountable and compatible with international governance structures. Some of the different roles of the rule of law may be more accentuated ‘at home’ than abroad: while at the domestic level, this idea is an end in itself; at the international level, the promotion of the rule of law can be qualified as a means.24 It is a means to guarantee prosperity, stability in peace, namely in developing countries and post-conflict scenarios. The promotion of the rule of law has been mainly translated into technical assistance, for example, from the World Bank to these countries to ensure the development of an effective legal system, non-violent mechanisms for resolving political disputes, and the promotion of human rights.25 The promotion of the rule of law in the international arena aims to develop ‘an international model for nonviolent, effective system-building and conflict resolution’.26
A great number of actors have been involved in the active promotion of the rule of law in developing and post-conflict states.27 In the last decades, the World Bank has worked in the development of governance structures for these countries, insisting that ‘the rule of law promotes effective and sustainable economic development and good governance … and economic growth.’28 Rule of law promotion normally implies a multitude of promoters who may advocate a number of different institutions and rules.
Arguably, the successful promotion of the rule of law means refusing a ‘one size fits all’ recipe for the implementation of the rule of law, and suggests a compromise formula, which considers the response and feedback from recipients, opening the door to learning possibilities.29 In order to achieve this compromise, it is important to understand the rule of law dynamics, i.e., the ‘distinct but interrelated processes of rule of law promotion (the promoter perspective) and the rule of law conversion (the recipient perspective), and the modalities, mechanisms, and processes that link the two (the diffusion perspective).’30 This process of promotion, conversion and diffusion means that the concretization of the rule of law is a multi-staged process. New rules and institutions aiming to guide the country towards the rule of law are—and perhaps should always be—established gradually. This perspective of the promotion of the rule may allow rules to evolve and develop over time. This is congruent with the perspective that the rule of law has its own dynamics: as, Nollkaemper, Peerenboom and Zürn point out, rarely is anything adopted without adaptation or implemented without resistance.31
A mere reduction of the rule of law to the idea of the supremacy of law or the idea that agents exercising public authority should be bound by law is not sufficient to evidence its different dimensions. The rule of law has different groups of addressees: on the one hand, it imposes legal obligations upon government officials. On the other, the rule of law limits and coordinates the behaviour of citizens who are expected to obey the rules that apply to them.32 While this second dimension might be straightforward, the first constitutes an additional complexity to the concretisation of the rule of law in the international arena. As Jeremy Waldron observes
the applicability of the ideal we call ‘the Rule of Law’ in international law is complicated by (1) the fact that there is no overarching world government from whom we need protection (of the sort that the rule of law traditionally offers) and … (2) the fact that international law affects states, in the first instance, rather than individuals (for whose sake we usually insist on rule of law requirements).33
States can nevertheless repudiate the application of an international rule of law even by arguing that they are ‘law-imbued entities’ that already constrain the conducts of their officials with rules of their own. As Waldron points out, any attempt to resist international law ‘should be based on legality rather than the repudiation of legality’.34 In addition, this resistance to the rule of law based on national rules cannot be easily offered by developing countries characterised by high levels of corruption and post-conflict turbulence where the rule of law barely exists. Is it thus possible to talk about a true international rule of law? And what are we talking about?
4.2.1.2 The International Rule of Law
The meaning of the rule of law in the international arena is still contested both in the context of the promotion of this idea to new democracies and in the international community. The implementation of ‘an international rule of law’ is complicated, amongst other things, by the fact that, contrary to the traditional concept of the rule of law, international law presumes a horizontal relationship between sovereign states. In the international realm, the rule of law is not meant to protect legal subjects from the state government or the law itself. Instead, as Jeremy Waldron observes, this ideal can be conceived here as a protection of corporations against states, or states from other states at the international level.35 The starting point of the domestic rule of law is rather a vertical relationship between the sovereign and its citizens, where the rule of law aims to submit the sovereign to the rule of law.36
Controversies aside, the rule of law appears to be alive and well at the domestic level and its magic persuasiveness is being exported to non-Western countries.37 More recently, the aspiration that the international community will live the dream of the rule of law has grown exponentially. We might not have an almighty world government lording it over all social, cultural, economic, and political activity in the world, but we still have international law, its actors and institutions.38
In the international arena, the rule of law has been defined in ‘thick terms’ by the Secretary-General of the United Nations as
[a] principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.39
The international rule of law has been promoted at the international level through international treaties and organizations and is deeply embedded in the Charter of the United Nations and in different UN resolutions, such as the Millennium Declaration.40 Another example is Resolution 61/39 adopted on December 4, 2006, where the General Assembly ‘requests the Secretary-General to prepare an inventory of the current activities of the various organs, bodies, offices, departments, funds and programmes within the United Nations system devoted to the promotion of the rule of law at the national and international levels.’41
The international rule of law encompasses elements that are essential for state to state relationships. However, beyond this perception of the international rule of law as the application of rule of law principles to the relationship between states and other subjects of international laws, other definitions are also available in the literature. Simon Chesterman refers to the ‘rule of international law’ as the rule that privileges international law over domestic legal arrangements, namely the primacy of human rights or even the perception of the rule of law in the international arena as a ‘global rule of law’.42
The international rule of law is thus not a constraint of ‘a super government’, but rather an ideal of international law that provides predictability and stabilises social relationships, protecting the freedom of the different actors in the international realm.43 As Mattias Kumm explains, the rule of law acts as an additional limit to the domestic level, contributing to the protection of individuals, enhancing
the checks and balances of a constitutional system, [complementing] domestic separation of powers. An effective institutionalization, international legality also has the tendency to limit the options of the executive branch to claim foreign affairs prerogatives and thereby shift power to the executive branch in a way that endangers and potentially destabilizes democracy on the national level.44
Although there is a widespread international consensus regarding the value and importance of the rule of law, this consensus is not always translated into real significance. Words do not often mean much in post-war scenarios when many leaders will promise to restore law and order, but only few of them will actually implement the rule of law agenda.45 In addition, the international rule of law is challenged by the constantly changing circumstances: novel and unexpected threats to human rights and international peace, and more destructive forms of using force. Can the international rule of law face these challenges by responding with temporary instruments that accommodate these changes or is the international rule of law rather ‘a law of lasting rules’?
4.2.2 The International Rule of Law and Time
The relationship between time and the (international) rule of law has been a highly overlooked topic in the literature. This subject is nonetheless essential at a time of dramatic changes as the ones we are witnessing today in the international realm. Understanding how time influences law can also help us to understand how we can promote and maintain the rule of law over time in recent democracies and post-conflict scenarios.
Laymen often see law as a source of immutability and rigidity. Law is nonetheless in permanent movement. And this is also true for international law. Nonetheless, law follows a different pace and does not change at the same speed as other realities around us do. Law is—either thanks to amendments or statutory interpretation—adaptive, but it is also bound by a sense of continuity that is at the origin of the principle of legal certainty.46 Law—also international law—can be conceived as a process over time, which is not only reflected in the time span between the beginning of negotiations between states and the implementation of international legal obligations but also in its consequent mutations. This process of change is visible in the evolution of rules after their entry into force, in the amendments to treaties, the room for a modern interpretation of treaty clauses and even their termination.47 The Treaty of Paris of 1951 establishing the European Coal and Steel Community was an illustration of a treaty that was clearly influenced by the recent past and designed to build a peaceful present and future. This treaty—to which we will come back later—came into force in 1952 and expired exactly fifty years later, after having achieved its mission of producing economic and political stability in Western Europe.
The fifty years of this treaty’s existence do not seem to have threatened the continuity of this European alliance and the reestablishment of the rule of law after the Second World War. Law must have a minimum of stability but reducing law either to a state of ‘absolute stability’ or to an ‘instrument of change’ seems too simplistic.48 A certain degree of continuity is desired since a high mutability of law could endanger the foreseeability that flows from the rule of law.49
The (international) rule of law has an ambivalent relationship with time: the rule of law must be characterised by sufficient stability and live longer than the ‘men who make the laws’ but, in order for law to rule, ‘it must be responsive and indeterminate, capable of extending to the infinite variety that confronts it … and be saturated in temporality.’50 This core of stability does not change the fact that if law is meant to fulfil its function as a supreme instrument of social order, it has to respond to social change and adapt to it.51
In international law, time or the past is a ‘building block’: in the case of customary international law, for example, it is clear that the past is a decisive element in building the present and the future. Customary law—the doctrine of instant custom aside—is the most vivid example of this function of time: since custom is not written, its meaning and validity have to be traced back to its genesis and the fulfilment of the requirements of state practice and opinio juris. 52 It is ‘a constant and uniform usage, accepted as law’.53 However, one of the most contested aspects in customary law is the period of time that is necessary to establish or change a customary rule, and which, according to the North Sea Continental Shelf cases does not need to be an extended one. Instead, there is no specific time requirement for the formation of customary international law as long as the practice has sufficient density.54 Therefore, the period of time that goes by does not necessarily make ‘the building block’ bigger or more relevant to international law.
In this context, it is clear that the nature and functions of some institutions established to consolidate the rule of law cannot have a temporary character. Temporariness is not available to every single institution and treaty. In its report ‘The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies’, the Security Council emphasises that despite the need ‘to act directly for the protection of human rights … where conflict has eroded or frustrated the domestic rule of law, in the long term, no ad hoc, temporary or external measures can ever replace a functioning national justice system.’55 It is important to emphasise here the use of the expression ‘in the long term’, from which we can conclude that transitory measures and institutions may be allowed at an early stage as long as they are later replaced by permanent ones.
Temporary institutions can be essential to solve transitory problems, but they do not always offer a solution for the future. A distinction must be made here between rule of law institutions and measures that can have a temporary character and are in fact a first step in developing the consolidation of the rule of law, and those institutions that represent the pillars of a legal order and must have a permanent character. In the first case, we can think of truth commissions, international criminal tribunals, or interim measures designed to provide temporary relief. Domestic courts and independent administrative bodies are however examples of institutions that require a ‘longer life’ in order to guarantee the independence and accountability of the judiciary.
In addition to the mentioned distinction, the establishment of temporary institutions might leave us with accountability problems that must be solved if temporary institutions are to be employed on a broader basis in the international arena. This might happen, for example, if international tribunals and organizations behave as ‘spaceships’ that land, promote the rule of law or enforce international criminal law, and leave, leaving also behind the effects of more or less problematic trials. International tribunals that act like spaceships come, see, but they do not conquer. And the international rule of law is precisely about conquering a legal order and ensuring its ‘submission’ to the rules of (international) law either ‘for good’ or for at least a stable period of time.