Jewel of the Rule

Jewel of the Rule

A critical analysis of:

Robert McCorquodale’s,

‘Defining the international rule of law: defying gravity?’ (2016) 65(2) International & Comparative Law Quarterly, 277-304.

Reece Wilkes

Subject: International Law; Rule of Law

Keywords: International Legal Order; Law; Review Paper; Rule of Law

In Defining the International Rule of Law: Defying Gravity the commentator McCorquodale assesses the characteristics of the International Rule of Law and whether such conceptual substance has criteria to be identified, thereby creating a definition for all of time. McCorquodale’s paper is to argue that a definition on the International Rule of Law can be set out, taking account of international and national legal systems and considers the objectives of the international rule of law and how these can be enshrined into the international system. He claims that, in its application, relativism is a prominent ingredient in how it is applied globally and despite debate, can be applied even if not completely actualized. He goes onto claim that its measure of compliance is based on a spectrum and not whether a country is simply complying or not.

In McCorquodale’s introduction he examines whether the rule of law, defined in the Oxford Dictionary as a ‘restriction on arbitrary excessive power by well-defined established law’^[1], can be contrasted with the formulaic equations to that of gravity. Indeed, he states:

“The rule of law is not like gravity… [Gravity] exists in the real world – across the whole Earth… the rule of law [however] seeks to describe… principles… that [do] not yet exist fully in any location but is sought to be attained.”^[2]

Prima Facie, McCorquodale has identified that the rule of law cannot be corporeally discovered, this does not mean we should deny its existence or indeed its effects “in the real world” however. For example, the Rule of Law Index shows that the rule of law is being applied, throughout the majority of major global states albeit, to differing conformity.^[3] This suggests to an extent, that the “principles” McCorquodale refers to have come to fruition thereby indicating that they do exist in locations contrary to his claims. Indeed, Bonsu and Philip Attuquayefio argue that any country committing to the democratic process automatically commits to the rule of law^[4] therefore suggesting that to find, what this author terms ‘trace-elements’ of the rule of law, one should look at the political/democratic climate in such location. Indeed, Norway is classed as the number one democracy in the world and is incidentally number two on the Rule of Law Index 2016,^[5] suggesting the two are strongly intertwined. Therefore, it is submitted McCorquodale has made an error in stating that the rule of law “[does] not yet fully exist in any location” as we can identify the elements of the rule of law by assessing the political/democratic sphere of the location in question.

Indeed, there is a correlation between the adoption of human rights and the implementation of the rule of law, which bring into disrepute McCorquodale’s claim that the rule of law does “not yet exist fully in any location” and cannot be found . Contrary to McCorquodale’s claims, Kilcommins argues that within democracies there has been a judicial “Gravitational force” rights-based conception of the rule of law which acts as a counterpoint to the supremacy of state control.^[6] European judicial case law has added weight to such claim whereby in Tomana and Others v Council and Commission, it was stated that human rights, democracy and the rule of law are closely intertwined together.^[7] Such view was equally taken by Higgins who states that they depend on each other for their “realisation”.^[8] This would suggest that the three conceptions must be seen in concert to each other and not in a legal/political vacuum. Based on the scholars Kilcommins, Higgins and Tomana claims, McCorquodale’s attempt at discrediting that the rule of law does not exists in any location is baseless as he has not considered issues which indicate that an international rule of law may exist in a state and how one may find where the rule of law applies. Therefore, it is submitted that McCorquodale’s has made an metaphorical/linguistic error and that by examining a state’s human rights record and democracy, one can deduce the existence, strength and “gravitational force” of the rule of law, if any.

In McCorquodale’s quest to determine a definition for a rule of law he states that it is on a spectrum when the rule of law could be identified. He states:

“The existence of the rule of law is a matter of degree, with all legal systems being on a spectrum with no rule of law at all at one end and a complete actualization of the rule of law at the other.”^[9]

This author terms this the ‘Extent Principle’. The Extent Principle as McCorquodale’s addresses, may be considered correct by way of examining different politico-legal systems on a globalised level. Similarly, between the inference drawn from democracy and human rights in the rule of law sphere, the existence of corruption plays a part in such spectrum^{[10] [11]}, an issue that one submits should have been considered and annexed to the ‘Extent Principle’ as the two both have an effect on each other and something McCorquodale’s has astonishingly omitted whilst discussing this pertinent issue and how corruption can affect such spectrum. Indeed, the United Nations Office on Drugs and Crime Executive Director Yury Fedotov expressed the view that “where corruption exists, the rule of law cannot flourish.”^[12] Countries that have been afflicted by corruption are often afflicted by an overtly powerful executive organ that remains unchecked by an effective judiciary. The failure of McCorquodale to stipulate this, within this section of his paper demonstrates a lack of consideration for the overarching issues underlying why the ‘Extent Principle’ exists, why such spectrum may exist and the importance behind its adverse effect on the rule of law.

An example of a corrupt act occurred in 1990’s Zimbabwe, whereby the president allowed Ministers to circumvent the law whereas a non-executive member would undoubtedly face the rule of law, as implemented within that country.^[13] This example shows the ‘Extent Principle’ in action and that it applies on an executive level where one state actor is treated differently to another due to their governmental status. The failure of McCorquodale to mention the national extent to how the rule of law is applied within different sectors in countries, and internationally with the existence of corruption in the executive, indicates he is not considering how different elements play a role on his hypothetical spectrum and in how the rule of law may be defined appropriately and interpreted differently within different institutions of the state.

McCorquodale’s hypothetical spectrum of no rule of law to actualized rule of law is intrinsically flawed due to its simplicity and circumstantial disregard of state flexibility. For example, the United Kingdom, renowned as a beacon of the rule of law came under fire when dropping an investigation into the allegations of corruption relating to arms trade to Saudi Arabia due to the threat that they would no longer assist in counter terrorist information (Corner House v Director of Serious Fraud Office)^[14]. Such action, one submits was corrupt as it was not upholding the rule of law that would apply to ordinary citizens. However, it is a sound example of how a state adopts a utilitarian approach in the name of national security. Indeed, If McCorquodale’s spectrum does exist, it does not exist in a static state and is dependent on the circumstances, therefore it is submitted he has made a fundamental logical fallacy in using a simplistic spectrum as an example which is potentially liable to change within each country.

[...]

^[1] 'Rule Of Law - Definition Of Rule Of Law In English | Oxford Dictionaries' (Oxford Dictionaries | English, 2016) <https://en.oxforddictionaries.com/definition/rule_of_law> accessed 02 December 2016.

^[2] Robert McCorquodale, 'DEFINING THE INTERNATIONAL RULE OF LAW: DEFYING GRAVITY?' (2016) 65 International and Comparative Law Quarterly.

^[3] 'Country Data On The Rule Of Law: The World Justice Project Rule Of Law Index: Summary Of Alejandro Ponce's Remarks' (2015) 108 Proceedings of the Annual Meeting (American Society of International Law).

^[4] Henrietta Mensa-Bonsu and Philip Attuquayefio, 'Rule Of Law And The ‘Do You Know Who I Am’ Syndrome: Reflections On Political Security In Ghana' (2016) 24 African Journal of International and Comparative Law.

^[5] 'Rule of Law Around the World', (2 June 2015)

^[6] S. Kilcommins, 'Crime Control, The Security State And Constitutional Justice In Ireland: Discounting Liberal Legalism And Deontological Principles' (2016) 20 The International Journal of Evidence & Proof.

^[7] Case C-330/15 | Tomana and others v Council of the European Union and another (2016) | [2016] | 4 W.L.R. 161.

^[8] Rosalyn Higgins, 'THE UNITED NATIONS: STILL A FORCE FOR PEACE*' (1989) 52 The Modern Law Review.

^[9] Robert McCorquodale, 'DEFINING THE INTERNATIONAL RULE OF LAW: DEFYING GRAVITY?' (2016) 65 International and Comparative Law Quarterly (291)

^[10] Parliamentary Assembly | Committee on Legal Affairs and Human Rights | Corruption as a threat to the Rule of Law | 2016

^[11] HELDER FERREIRA DE MENDONÇA ANDRÉ OLIVEIRA DA FONSECA | Corruption, income, and rule of law: empirical evidence from developing and developed economies| Brazilian Journal of Political Economy, vol. 32, nº 2 (127), pp. 305-314, April-June/2012

^[12] United Nations Office on Drugs and Crime | Executive Director Yury Fedotov, 'Https://Www.Unodc.Org/Unodc/En/Press/Releases/2012/September/Where-Corruption-Flourishes-Development-And-The-Rule-Of-Law-Fail-Says-Unodc-Chief.Html' (2016).

^[13] Yassin El-Ayouty, Combating Corruption for Development: The Rule of Law, Transparency and Accountability, Greenwood Publishing Group: Westport, CT., Summer 2003

^[14] R (on the application of Corner House Research and another) v Director of Serious Fraud Office (BAE Systems plc, interested party) [2008] 4 All ER 927