The ‘Responsibility Not to Veto’, Secondary Rules, and the Rule of Law

2014 ◽  
Vol 6 (3) ◽  
pp. 269-294 ◽  
Author(s):  
Theresa Reinold
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Security Council ◽  
The Rule Of Law ◽  
International Legal Order ◽  
Politics And Law ◽  
Legitimacy Crisis ◽  
Rule Making ◽  
Secondary Rule

In this article I argue that the concept of secondary rules provides a useful tool for analysing the interplay of politics and law in the evolution of the ‘responsibility not to veto’, which represents an attempt to subject the Security Council to the rule of law. Secondary rules help to maintain the law’s overall coherence, thereby bolstering its legitimacy and hence its ability to effectively govern human conduct. Most accounts of secondary rule-making overstate the role of power while underestimating the need for powerful states to argue within the parameters set by the law itself. This contribution, by contrast, explores the interaction of power and law, and the role of secondary rules therein. It shows that the international legal order currently lacks coherence as there is no consensus on overarching principles. Hence, the legitimacy crisis of the Security Council is at the same time a legitimacy crisis of international law.

The Rule of Law and the Quest for Constitutional Substitutes in International Law

2014 ◽  
Vol 83 (2) ◽  
pp. 87-127 ◽  
Author(s):  
Richard Collins
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
International Institutions ◽  
Institutional Structure ◽  
International Affairs ◽  
The Rule Of Law ◽  
Normative Authority ◽  
International Legal Order ◽  
Sovereign Authority ◽  
Second World

The practice of modern international law seems inherently bound up with the quest for a rule of law in international affairs. This commitment to the rule of law at the international level finds expression not merely in academic literature, but has been regularly endorsed by states themselves, particularly in the context of the United Nations. Nevertheless, the pursuit of an international rule of law is an ambition which is constantly frustrated. The institutional structure of the international legal order seems incompatible with this vision, resulting in a constant sense of frustration about the apparently ‘primitive’ or otherwise constitutionally deficient institutional structure of modern international law. In fact, despite the intensification of ‘governance’ through international institutions in the years since the end of the Second World War, it seems like the proliferation and growing normative authority of international institutions more often than not gives rise to more concerns from a rule of law perspective. In this article I not only seek to understand the nature of this rule of law commitment and the reasons for this constant frustration, but in doing so I will argue that the institutional context implicit in the ideal of the rule of law is incompatible with the nature and functioning of international law. I seek to show, in fact, how the perpetual sense of frustration felt in international law’s failure to live up to this ideal stems from the fact that the rule of law is a notion which is implicitly bound up with the political context of sovereign authority within states. To attempt to impose the rule of law outside of this context will not only result in distortion and mischaracterisation, but runs the risk also of legitimising precisely the kind of arbitrary authority which is the main target of the rule of law itself.

Weaving a Tangled Web:Hapeand the Obfuscation of Canadian Reception Law

2008 ◽  
Vol 45 ◽  
pp. 55-96 ◽  
Author(s):  
John H. Currie
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Potential Role ◽  
Supreme Court Of Canada ◽  
Customary International Law ◽  
The Rule Of Law ◽  
Legal Obligations ◽  
Canadian Law ◽  
The Relationship

SummaryThe majority Supreme Court of Canada judgment inHape— a case concerning extraterritorial applicability of theCanadian Charter of Rights and Freedoms— is premised on three aspects of the relationship between international and Canadian law: (1) the interaction of customary international law and Canadian common law; (2) the role of Canada’s international legal obligations inCharterinterpretation; and (3) the potential role of customary international law as a source of unwritten principles of the Canadian Constitution. This article reviews pre-existing law in all three of these areas and analyzes a number of innovations apparently introduced thereto, with little or no explanation, by the majority inHape. It concludes thatHapeseriously exacerbates an already uncertain relationship between international and Canadian law, with fundamental consequences for the rule of law in Canada.

A Keen Observer of the International Rule of Law? International Law in China's Voting Behaviour and Argumentation in the United Nations Security Council

2013 ◽  
Vol 26 (4) ◽  
pp. 875-907 ◽  
Author(s):  
PHIL C. W. CHAN
Keyword(s):  
United Nations ◽  
International Law ◽  
Rule Of Law ◽  
Security Council ◽  
United Nations Security Council ◽  
Voting Behaviour ◽  
International Legal Order ◽  
The United Nations ◽  
International Rule ◽  
Keen Observer

AbstractGiven the centrality of law in the creation, decision-making, and impact of the United Nations Security Council, the deliberative discourses among Security Council Members, and the necessity for China to articulate its reasons publicly for its actions within the Security Council, the roles that China plays within the Security Council illuminate and clarify its approaches to the current international legal order. This article explains how law serves as a constitutional–normative framework within which the Security Council must function, followed by a discussion of how the Security Council in turn may serve as a locus of deliberative discourses that delineate, influence, and constrain its members’ state behaviours. It challenges the view that law plays a limited role on matters of international security by exploring China's voting behaviour in the Security Council and the arguments that it has proffered. It also discusses how China may respond to a draft Security Council resolution aimed at its conduct other than simply by vetoing it, and how it has taken a proactive role in the maintenance of international peace and security through the Security Council.

scholarly journals ‘Rules about rules’ and the endogenous dynamics of international law: Dissonance reduction as a mechanism of secondary rule-making

2014 ◽  
Vol 3 (2) ◽  
pp. 236-273 ◽  
Author(s):  
THERESA REINOLD ◽  
MICHAEL ZÜRN
Keyword(s):  
International Law ◽  
Causal Mechanism ◽  
Conceptual Tool ◽  
The Rule Of Law ◽  
Social Science Theory ◽  
Causal Mechanisms ◽  
Science Theory ◽  
Rule Making ◽  
Secondary Rule ◽  
Dissonance Reduction

AbstractWe can observe some developments that indicate a further strengthening of human rights and the rule of law even after 2001. These developments are puzzling as they occurred despite largely unfavourable scope conditions. This article offers an account of these developments that focuses on dynamics endogenous to the law. These internal dynamics provide a causal mechanism that sets in once a certain threshold of legalization has been reached. We employ the Hartian notion of secondary rules which we think is an especially helpful conceptual tool to analyse the endogenous dynamics of legal systems. To the extent that law is programmed towards consistency, secondary rules become necessary in an environment of rapidly increasing legal density to govern the complexity resulting from this proliferation of norms. Upholding consistency is necessary to maintain the autonomy of law in a Luhmannian sense and the ‘morality’ of the legal system in a Fullerian sense. Our goal is to show this and at the same move beyond an argument of system or normative functionality by identifying causal mechanisms that can explain the law’s built-in drive towards secondary rules, and that are in accordance with broader social science theory. We use some insights from cognitive psychology to develop these causal mechanisms further. While testing these causal mechanisms would be beyond the scope of this paper, we hope to provide the conceptual tools for future empirical research on the dynamics of secondary rule-making and offer some empirical illustrations to demonstrate how dissonance reduction operates in practice.

Iraq and the Force of Law: Why Give A Shield of Immunity?

1991 ◽  
Vol 85 (1) ◽  
pp. 89-92 ◽  
Author(s):  
David D. Caron
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Security Council ◽  
War Crimes ◽  
Armed Force ◽  
The Rule Of Law ◽  
Peaceful Settlement ◽  
Settlement Of Disputes

As these words are written, the use of armed force to liberate Kuwait, and all the suffering and waste such use implies, becomes more likely. Given the primacy of the peaceful settlement of disputes in international law, I consider in this brief essay how the rule of law could play a role in this crisis. The UN Security Council’s call for the collection of information regarding possible war crimes by Iraqi officials and possible claims for damages arising out of the invasion was a welcome innovative effort, although it has yet to have any perceptible effect. That move, however, did not fully embrace the rule of law as a solution or make clear to Iraq the force that the rule of law can bring to bear. If the Security Council made an effort to implement the rule of law more forcefully, in my view it would greatly diminish the felt need to use armed force against Iraq.

scholarly journals Indeterminacy, Ideology and Legitimacy in International Investment Arbitration: Controlling International Private Networks of Legal Governance?

2021 ◽  
Author(s):  
Juan J. Garcia Blesa
Keyword(s):  
Rule Of Law ◽  
International Investment ◽  
The Rule Of Law ◽  
The Past ◽  
Investment Arbitration ◽  
Investment Law ◽  
Traditional Approaches ◽  
Legitimacy Crisis ◽  
Broad Consensus

AbstractThis article connects the insights of post-realist scholarship about radical indeterminacy and its consequences for the legitimacy of adjudication to the current legitimacy crisis of the international investment regime. In the past few years, numerous studies have exposed serious shortcomings in investment law and arbitration including procedural problems and the substantive asymmetry of the rights protected. These criticisms have prompted a broad consensus in favor of amending the international investment regime and multiple reform proposals have appeared that appeal to the rule of law ideal as an instrument for increasing the acceptability of the international investment system. This article argues that the reliance of such proposals on jurisprudential approaches that fail to adequately accommodate the post-realist indeterminacy critique and take seriously the role of ideology in adjudication renders reform efforts unable to solve the legitimacy problems of the investment regime. The conclusions suggest the need to abandon implausible claims to depoliticization and face the methodological challenges posed by the promise of ideologically balanced assessments advanced by some rule of law theorists. The article finally points at the urgency to reform traditional approaches to doctrinal work in order to increase awareness of critical challenges and open up doctrinal methods to alternative methodological avenues.

The ethical challenges of implementing counterterrorism measures and the role of the OSCE

2009 ◽  
Vol 20 (2) ◽  
pp. 123-132
Author(s):  
Steven Westervelt ◽  
Bibi van Ginkel
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Rule Of Law ◽  
Security Council ◽  
Good Governance ◽  
Ethical Challenges ◽  
Regional Organizations ◽  
The Rule Of Law ◽  
Moral High Ground

AbstractThe United Nations established a counterterrorism mechanism in the form of the Counterterrorism Committee when it adopted Security Council Resolution 1373 (2001). The Committee has so far worked with regional organizations and individual states in capacity building efforts to augment local counterterrorism abilities. However, ethical bottlenecks remain. The problem of ethics arises when laws lack legitimacy regarding criminality and state power and when they diverge from the rule of law and good governance. Regional organizations are keenly placed to ensure that states adopt legitimate counterterrorism measures, thus avoiding ethical bottlenecks. By working with states to maintain the moral high ground, regional organizations such as the OSCE can prevent unnecessary compromises between human rights and security.

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