1 Membership Conditions

Since 1989, organizations such as the European Union (EU), the Council of Europe (CoE), and the North Atlantic Treaty Organization (NATO) have stimulated serious constitutional reforms in those Eastern and Central European states that sought to accede. As a condition for membership, deep rule-of-law-related reforms had to be undertaken.

The most influential organization has probably been the EU. Twelve Central and Eastern European candidate states acceded to the EU in two main waves, in 2004 and 2007.Footnote ¹⁰ When the first Central Eastern enlargement was under discussion, the European Community, as the organization was then called (under the broader ‘roof’ of the European Union), did not yet possess substantive accession criteria in its primary law. Rather, the accession criteria were spelled out in the Presidency Conclusions issued at the European Council’s Copenhagen meeting in 1993 in which it was stated:

Later, these so-called Copenhagen criteria for accession were written into the 2007 Lisbon version of the Treaty on European Union in Article 49, read in conjunction with the clause on the Union’s “values” in Article 2. These “values” include the rule of law.Footnote ¹² As a result, accession of the new Central and Eastern European states to the EU implied transformations that affected “the very structure of the constitution” of those states.Footnote ¹³

Similarly, the CoE requested rule-of-law reforms. The accession standards are laid down in Article 3 of the organization’s founding treaty (the Statute of the CoE) and in secondary law. Article 3 requires acceptance of “the principles of the rule of law.” In accession practice, this provision has been interpreted as requiring ratification of the European Convention on Human Rights (ECHR) and the establishment of a pluralist parliamentary democracy.Footnote ¹⁴ Membership is strictly conditioned upon having a liberal and democratic constitution that endorses the trinity of rule of law, human rights, and democracy.Footnote ¹⁵

Admission to the World Trade Organization (WTO) also had repercussions for the rule of law. The requirements for WTO membership are laid down in so-called accession protocols, which differ from one candidate state to another. A famous case was China’s accession to the WTO in 2001. In its accession protocol, China notably committed itself to transparency and judicial review.Footnote ¹⁶ Transparency and judicial review are key components of the rule of law. These principles must now be observed by China in trade and economic policy, because the state would otherwise not be fulfilling its treaty obligations.

These examples illustrate how the prospects of accession to various international and regional organizations have functioned as incentives for domestic constitutional reforms, including the improvement of rule-of-law-related institutions.

2 Conditionalities, Indicators, Benchmarking, Advice

Further and subsequent to preaccession incentives, the activity of international organizations has the potential to directly or indirectly shape the constitutions of states, which in turn has repercussions on the national rule of law. Rule-of-law promotion by international organizations that calls for constitutional reform often overlaps with other activity that does not directly address or imply specifically constitutional law. A famous example is the Venice Commission’s Rule of Law Checklist of 2016.Footnote ¹⁷ Also the UN Secretary-General has defined the rule of law in the context of transitional justice.Footnote ¹⁸

This chapter leaves aside those rule-of-law activities by international organizations that pertain to specific fields such as fighting impunity. Also, it leaves out the work of universal human rights bodies and regional human courts, although, as part of their human rights monitoring, they occasionally recommend or request not only individual measures toward specific victims or legislative reforms but also constitutional reforms to remedy human rights violations. A recent example is the response to the ongoing rule-of-law crisis in Hungary and Poland. Here, European courts have derived the states’ obligations to restore an independent judiciary from human rights obligations.Footnote ¹⁹ Another example of explicit and broad rule-of-law requests by a human rights body is the work of the Inter-American Commission concerning corruption – corruption (the rule of money) being the antithesis of the rule of law.Footnote ²⁰

International financial institutions (IFIs), especially, have exercised pressure to reform state constitutions. Their activity (of both benchmarkingFootnote ²¹ and outright conditionalities) has included a focus on explicit requests for rule-of-law-related reforms, which in turn imply constitutional reform. For example, the worldwide governance indicators created by the World Bank and the Brookings Institution have always invoked the rule of law. And the World Bank country policy and institutional assessments (CPIA), which since 2005 have been made public, rate the recipient countries according to various criteria such as “property rights and rule-based governance” and “transparency, accountability, and corruption in the public sector.”Footnote ²²

The next most relevant constitutional dimension affected by IFIs’ activities concerns the welfare and social provisions of state constitutions. World Bank and IMF policies, programs, and rules of the game, notably the conditionalities, may affect the recipient states’ bureaucracy and influence public spending (e.g., on state education).Footnote ²³ As part of adjustment programs set up by IFIs, states have enacted legal reforms that have negatively affected the enjoyment of constitutionally (and internationally) guaranteed human rights, such as entitlements to pensions protected as property, the right to social security, the right to health, and the right to education. These rights form part of a “thick” and “social” vision of the rule of law.Footnote ²⁴

Another “defender of the rule of law” (to use the word of its former Director and Secretary Thomas Markert) is the Venice Commission.Footnote ²⁵ This is a body operating within the framework of the CoE.Footnote ²⁶ Since its creation in 1990, the Venice Commission has been heavily involved in constitution-making and constitutional reform, always upon a request from a member state, a body of the CoE such as the Committee of Ministers or the Parliamentary Assembly, or from an international organization such as the EU. The Venice Commission has issued opinions that concern the drafting of entire constitutions or significant parts of them, has provided assistance for constitutional reforms, and has made pronouncements on legislative projects that flesh out constitutional provisions in numerous cases. The Commission notably gives regular advice on the organization of the judiciary and on electoral law. Although the latter group of opinions formally rank as provisions of ordinary statutory law, they are eminently important for the practical functioning of the rule of law in the states concerned.Footnote ²⁷

Outside Europe, regional organizations have been working to support the establishment, consolidation, and protection of democratic systems of government, and concomitantly the rule of law. The Organization of American States adopted the Inter-American Democratic Charter on the very day of the September 11, 2001 terrorist attacks. Article 2 of the Charter states that “[t]he effective exercise of representative democracy is the basis for the rule of law and of the constitutional regimes of the member states of the Organization of American States.”Footnote ²⁸

In 2007, the African Union adopted the African Charter on Democracy, Elections and Governance.Footnote ²⁹ Under this instrument, which entered into force in 2012, the Peace and Security Council (PSC) of the African Union can suspend governments that have come to power through an unconstitutional change in government. Such suspensions have most recently been put in place against Mali, Guinea, Sudan, and Burkina Faso after military coups in those states.Footnote ³⁰

Given that many other rule-of-law-related activities of international organizations also, to a lesser or greater extent, involve state constitutions, the examples given in this section are incomplete. They must suffice to illustrate the claim that international and regional organizations have a track record of attempting to improve the “domestic” rule of law by shaping the constitutions of their member states. The intensity of their engagement has varied greatly, however, across the different regions of the world.

3 Constitution-Shaping by the United Nations

A special case is UN assistance in constitution-making and constitutional reform processes in the Global South (Africa, Latin America, the Near East, and Asia).Footnote ³¹ Since 1989, albeit with different degrees of intensity, the United Nations has been involved in constitutional processes in at least nine states, ranging from Yemen in 1991Footnote ³² to the Central African Republic in 2016.Footnote ³³ The list includes Cambodia (1993),Footnote ³⁴ Guinea-Bissau (substantial constitutional revision in 1996),Footnote ³⁵ Afghanistan (2004),Footnote ³⁶ Libya (2011),Footnote ³⁷ and Côte d’Ivoire (2016).Footnote ³⁸ The UN has also participated in the creation of two new states and their constitutions (East Timor (2002) and South Sudan (2011)).

1 Universal Organizations

With regard to international financial institutions, their impact on recipient states’ tax revenues, public sector wages, and the like has been corroborated by recent studies.Footnote ⁸⁶ This impact partly concerns the states’ constitutions and the domestic rule of law. However, it has mostly been evaluated as being negative for the concerned populations.Footnote ⁸⁷

The effects of accession to the WTO on the Chinese constitution and rule of law have been variously assessed. Eight years after accession, Esther Lam found that the WTO requirements formed an important model for further changes in non-WTO-related areas “such as uniformity of laws and legal administration, non-discrimination, transparency, and impartial mechanisms for challenging government decisions and actions.”Footnote ⁸⁸ Lam also claimed that “[a]lthough the enforcement of laws remains weak, legal rules are assuming an unprecedented level of prescriptive power in post-WTO accession China.”Footnote ⁸⁹ According to Lam, the result was, inter alia, “legal guarantees to individual freedom of actions and the right to trade, and it [the enhanced role of law] restricts political power from arbitrarily encroaching onto spheres where law does not prescribe it to do so.”Footnote ⁹⁰ In contrast, more recent studies have downplayed or denied the impact of WTO membership on China’s rule of law.Footnote ⁹¹

2 European Organizations

The constitution-shaping by the two European regional organizations – the EU and the CoE – has only in part produced deep and lasting effects. Political scientists found that the EU’s political accession conditionalities had a “tremendous impact” on what they called the “Europeanization” of Central and Eastern Europe.Footnote ⁹² It has also been said that “[h]uman rights, liberal democracy, and the rule of law are the fundamental rules of legitimate statehood in the European Union.”Footnote ⁹³

However, the EU’s preaccession “pull” toward the rule of law is by no means guaranteed. Since Croatia’s accession to the EU in 2013, other Eastern European states (Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia, and Serbia) have not moved closer to accession. Montenegro and Serbia have been conducting accession talks since 2012 and 2014, respectively, but the prospect of accession does not seem to have initiated a further dynamic of constitutional reform in those states.

With regard to the actual constitutional reforms triggered by accession to the EU, Anneli Albi found that the constitutional amendments in Central and Eastern European countries “remained relatively minimal” – often contrary to initial enthusiast rhetoric.Footnote ⁹⁴ From the outset, “international socialization” through the EU (and the CoE) did not work in those states that had been clearly antiliberal, such as Belarus, Ukraine, Serbia, or Russia.Footnote ⁹⁵ For those states that had already been on the path to liberalism before the accession to the CoE (Estonia, the Czech Republic, Hungary, Latvia, Lithuania, Poland, and Slovenia), it first looked as if the liberal constitutional principles required by both organizations for membership would work well. But thirty years later, some of these states have turned away from the international standards and are becoming illiberal democracies, such as Hungary and Poland.

Current events in the EU seem to confirm that once a state has been admitted to the international organization, there is no longer any leverage to press for reforms, as the carrot of membership that was the incentive for reform has gone. This then leads to a loss of effectiveness of any further constitutional intervention. Whether new tools such as the EU’s so-called rule-of-law mechanism can bring illiberal member states back in line and up to constitutionalist standards is unknown for the time being.Footnote ⁹⁶

For the CoE, it is obvious that the actual application and implementation of these imperative constitutional principles on the ground have been only weakly monitored. Russia, which was excluded from the Council in March 2022, is an example – the organization had arguably not properly responded to Russia’s continual disregard of the rule of law until it turned into extreme violation when Russia invaded Ukraine in February 2022.

All this suggests that the European organizations’ impact on strengthening the rule of law in accession candidates and member states has been uneven.

3 UN Impact on Constitutions in the Global South

The lack of effectiveness of rule-of-law building through constitutional assistance is especially palpable in the Global South. Once the constitution is made, with international assistance and following international standards, it needs to be put to work by domestic actors. But this generally does not function well. The lofty constitutional principles adopted under the influence of the United Nations or other foreign actors have frequently not been translated into concrete rules that are followed by state officials.

Take the constitutions of Cambodia (1993, as amended up to 2008), South Sudan (2011), and the Central African Republic (2016), to name but three constitutions that were recently adopted with UN and other international actors’ assistance. They all contain catalogues of fundamental rights that on the whole faithfully mirror international human rights standards and are complemented by features specific to each region.Footnote ⁹⁷ However, constitutional rights are hardly applied on the ground due to a lack of infrastructure, impunity of violators, dictatorship (as in Cambodia), and armed conflict (as in the Central African Republic).Footnote ⁹⁸ In extreme cases, constitutional rights exist only on paper. In all cases, a gap of greater or lesser glaringness persists between the constitutional document and its effects on the political, legal, and administrative practice of public institutions.Footnote ⁹⁹

4 Observations

In conclusion, both in Europe and in the Global South, the external constitutional assistance lent by international organizations has produced only moderate positive effects – if any at all – for the functioning of the rule of law.

Already in 2011, a consultative process on rule-of-law assistance organised by the UN found that rule-of-law assistance was “too often executed in an ad hoc manner, designed without proper consultations with national stakeholders, and absent exacting standards of evaluation.” It inquired how “rule of law assistance can be better channelled to deliver results.”Footnote ¹⁰⁰

Probably, the advising and accompanying organizations would need to pay much more attention to the matter of practical application and transposition of constitutional and rule-of-law principles into (ordinary) domestic law. It has been asserted that in recent instances of UN constitutional assistance, the question of implementation was barely touched on at the stage of constitutional negotiations.Footnote ¹⁰¹

However, implementation depends first of all on the states themselves. A chief reason for the constitutions having little impact is probably the fragility of the institutions in the states concerned. Many factors contributing to this fragility are (and properly so) beyond the reach of the international organizations.

Also, it is unlikely (although – as a counterfactual – not verifiable by empirical investigation) that the constitutions would work better in practice had they been adopted without any external assistance. It must remain a matter of speculation whether purely home-grown constitutions in those countries would be (or have been) more socially acceptable because of a stronger sense of ownership and because of a better fit to local norms. Social acceptance normally leads to better compliance. But the price to pay might be deficiencies in substance and an even larger distance from the constitutional ideal of the rule of law.

1 Respecting State Sovereignty

Constitutional assistance by international organizations would violate the principle of non-intervention if the organizations intruded upon the domaine réservé of the target state and, additionally, the means of interference amounted to “coercion.” However, the rule of law no longer pertains to the domaine réservé. Rather, like human rights and democracy, it has become a familiar topos in international legal discourse – not the least through the constitutional assistance of international organizations. The approval and continuity of such practices has created a loop by which these issues (respect for the rule of law, human rights, and democratic processes) have been lifted out of the domaine réservé of states – they have been transnationalized.Footnote ¹²² Although somewhat circular, this process now means that the constitutional assistance afforded by international organizations can no longer be categorically dismissed as unlawful intervention. Rather, the practice has created the space for examining the extent to which the objectives of constitutional assistance justify the means employed by the organizations, and whether the means–ends relationship is proportionate.

The second prong of a prohibited intervention (coercion) is not an all-or-nothing concept. Only when interference in state affairs reaches a certain intensity or “magnitude”Footnote ¹²³ will it leave the realm of lawful pressure and cross the threshold of “coercion.”Footnote ¹²⁴ This threshold is defined by relying on reasonablenessFootnote ¹²⁵ or through balancing: the interference amounts to an unlawful intervention when either the means or the ends are per se unlawful, or when means and ends in combination become unlawful, notably because the means–ends relationship is not appropriate (i.e., disproportionate).Footnote ¹²⁶ Factors to take into account are the depth of the interference with interests of the target state, the breadth (effects on third states), the duration of the measure, and the objectives of the interference.Footnote ¹²⁷ It is often stated that the aim of bringing about a regime change is “the most coercive form of political interference.”Footnote ¹²⁸ The adoption of a new constitution, especially when combined with elections, can be seen as a regime change, and therefore could be accused of having crossed the red line to become unjustified intervention.

However, in formal terms, constitutional assistance by international organizations is generally not coercively imposed. Constitution-making assistance has been offered only on request. For example, the 2009 UN guidance note on constitution-making emphasizes that UN assistance will be offered only “when requested by national authorities.” In line with this, UN bodies should “recognize constitution-making as a sovereign national process, which, to be legitimate and successful, must be nationally owned and led.”Footnote ¹²⁹

Coercion may nevertheless be present informally, due to economic dependency. The formal voluntariness of consenting to constitutional assistance, and especially to austerity programs with constitutional repercussions, might only be a sham. With regard to UN assistance, Vijayashri Sripati has argued that receiving states consent only “technically speaking” to the adoption of a new constitution. In reality, they are faced with no choice because they are “groaning under mountains of debt.”Footnote ¹³⁰ Their consent is therefore, according to Sripati, “utterly compromised.”Footnote ¹³¹

In a similar way, the acceptance of pre- or postaccession conditions for membership of a given organization, and the signing of memorandums with international financial institutions might be made de facto inevitable by economic and political circumstances. Formally, states apply to the World Bank for project financing, and they ask the international monetary fund for a credit. States wish to join the EU – they could also stay out. However, strong factual constraints push the states to apply “voluntarily.”

Do these constraints lead to “imposition” by the international organizations? I submit that this is not the case as long as the pressure does not amount to coercion or military threat. Relevant legal thresholds have been developed in practice and in scholarship regarding “coercion,” not only for the definition of “intervention,”Footnote ¹³² but also in the context of the conclusion of treaties (Articles 51 and 52 of the Vienna Convention on the Law of Treaties)Footnote ¹³³ and the use of force prohibited by Article 2(4) of the UN Charter. Although the thresholds differ in detail, they all convey the legal message that constraints resulting from an unfavorable economic and political position, weak bargaining power, and even a situation perceived by a state as leaving it with no choice do not undermine the state’s “free” decision. These thresholds and delimitations can also be applied to situations where constitutional assistance is invited. It is “free” and “voluntary” in the eyes of international law as long as the inviting state has not been pressured by military threats.

However, this answer of international law is formalistic and reflects the interests of the most powerful states of the North. Therefore, the assessment of lawfulness does not obviate the need to examine the broader issues of legitimacy.

2 Respecting Local Rule-of-Law Cultures

The critiques mentioned above suggest that when constitutional assistance is provided by international organizations care needs to be taken to avoid legal imperialism, double standards, capitalist capture, and cultural imposition. At this point, we need to distinguish between radical repudiation of the rule of law as such and the less profound problem of a lack of culture-specific adaptations. While a radical repudiation of the rule of law is nowhere to be found, assistance that is applied schematically and without adequate consideration of the need for local adaptations in the rule of law seem to be real issues.

As far as UN activity is concerned, after some years of experimenting with transitional justice, the UN Secretary-General admitted: “Unfortunately, the international community has not always provided rule of law assistance that is appropriate to the country context. Too often, the emphasis has been on foreign experts, foreign models and foreign-conceived solutions … .”Footnote ¹³⁴ He continued that “we have learned” that the transitional justice processes need to be based on a thorough analysis of the local situation, based preferably on “expertise resident in the country,” and that the processes must be based on “active and meaningful participation of national stakeholders … while leaving process leadership and decision-making to the national stakeholders.”Footnote ¹³⁵ “Pre-packaged solutions are ill-advised. Instead, experiences from other places should simply be used as a starting point for local debates and decisions.”Footnote ¹³⁶ Although these “lessons learned” pertained to transitional justice processes, they would seem equally to apply mutatis mutandis to constitutional assistance.

Because law is a product of culture and society, difficulties arising from deep differences in legal culture (and culture more generally) are serious. The identification of the problem, the “lesson” drawn, is only the first analytical step, and in no way guarantees that a remedy is at all possible. We need to acknowledge that the rule of law is so abstract that it cannot “deliver” anything in and of itself.Footnote ¹³⁷ The tension between the vagueness of the rule of law and the fact that it is contingent on concrete and context-dependent, bottom-up action on the ground remains irresolvable.

The next big problem is the rule of law’s Eurocentric and colonial baggage. In order to overcome this, the international organizations need to take up the ideas flowing from non-European constitutionalist thought.Footnote ¹³⁸ For example, the Latin American concept of a “social rule of law” could be inspiring.Footnote ¹³⁹

3 A More “Social” Rule of Law

The aforementioned idea of a “social rule of law” underlines the spreading insight that the neoliberal constitutional frame that has been pursued by a number of international organizations is not enough. A key problem in constitution-shaping has been the neglect of the social dimension of constitutionalism, in line with an exclusively formal conception of the rule of law. However, this neoliberal tilt – especially when it comes to IFIs – is not inevitable and not historically entrenched.Footnote ¹⁴⁰ The IFIs’ policies could change (and are arguably in the process of doing so).Footnote ¹⁴¹ In the face of rising material inequality in wealth and income that is exploited by populist and authoritarian leaders, it is no longer sufficient to wait for the developmental benefits of a formal and “thin” rule of law.

International organizations – at least since the 1990s – have insisted on the positive feedback loop (as opposed to antagonism) between economic/social development and constitutionalism/rule of law.Footnote ¹⁴² This can be seen from the World Summit Outcome Document of 2005 stating that “rule of law at the national and international levels [is] essential for sustained economic growth, sustainable development and the eradication of poverty and hunger.”Footnote ¹⁴³ Accordingly, the UN General Assembly Agenda 2030 (adopted in 2015) deals with development but embraces a strong rule-of-law component: “The new Agenda recognizes the need to build peaceful, just and inclusive societies that provide equal access to justice and that are based on respect for human rights (including the right to development), on effective rule of law and good governance at all levels and on transparent, effective and accountable institutions.”Footnote ¹⁴⁴

This passage and Sustainable Development Goal 16 advocating for rule of law were controversial and one of the “hotly debated topics” in the process of adopting Agenda 2030.Footnote ¹⁴⁵ The outcome has been called a “sea change”Footnote ¹⁴⁶ in the area of law and development. Goal 16 seeks to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” More specifically, subgoal 16.3 seeks to “promote the rule of law at the national and international levels and ensure equal access to justice for all.” A Washington-based think tank has written: “Global declarations and persuasive research demonstrate that there is a connection between the rule of law and sustainable development. Some have questioned both the strength and the causal direction of this connection. But the correlation between a society’s adherence to the rule of law and its progress toward stability and development is beyond question.”Footnote ¹⁴⁷

Contrary to what the think-tank wrote, the alleged correlation between the rule of law and economic growth does continue to be questioned.Footnote ¹⁴⁸ Skeptics are probably right in asking for incremental improvement of developmental governance capabilities on a small scale (by experimentation and trial and error), taking into full account the political, economic, and institutional conditions in each country.Footnote ¹⁴⁹

A different story is that the fixation on economic growth is not sustainable and might need to be complemented or replaced by more ecology- and climate-friendly strategies of development such as “degrowth.” In the end, the economic problems point to the limits of the law as a factor of order, less powerful than economic factors. A moderate capacity to shape reality attaches to the law in general, to constitutional law in particular, and to the rule of law as a principle, too.

1 Developing Core Rule-of-Law Principles through the European Courts

On the EU level, rule-of-law thinking is usually traced to Les Verts, a 1987 judgment of the European Court of Justice.Footnote ³⁷ The Court explained that the European Community (as it was known as the time) is “based on the rule of law inasmuch as neither its member states nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.” This implicates what we have called the supranational rule of law.

Even earlier, the Court of Justice had established the principle of legal certainty and protections against retroactive laws in what is now European Union law.Footnote ³⁸ In addition, it recognized the principle of legality – that is, the requirement that rules are set in a transparent, accountable, democratic, and pluralistic process: “In a community governed by the rule of law”, the Court said, “adherence to legality must be properly ensured.”Footnote ³⁹ Similar ideas were to be found in the jurisprudence of the European Court of Human Rights.Footnote ⁴⁰ One by one, the European Court of Justice and the European Court of Human Rights acknowledged the principles that constitute the rule of law. When the European institutions developed today’s more comprehensive definitions, they only had to aggregate the courts’ jurisprudence on those building blocks.Footnote ⁴¹

In 1989, for example, the European Court of Justice acknowledged that in all member states any government intervention needs to have a legal basis and needs to be justified on grounds laid down by law:Footnote ⁴² “The need for such protection must be recognized as a general principle of [what is today European Union] law.” This prohibits the arbitrary use of government powers. In keeping with TLO theory’s emphasis on the networked nature of the legal concepts on the international plane, the Court’s argument mirrored the preamble of the ECHR, which refers to the rule of law as part of the “common heritage” of its signatory states. This is, of course, strikingly different from today’s rule-of-law discussions: In this early stage, the rule of law was enshrined in national (constitutional) law and then “borrowed” by the supranational level. The idea that supranational, European rule-of-law principles may need to be enforced against a nation-state seemed far-fetched at the time.

Nonetheless, at this early stage the European courts also dealt with what would become today’s main battleground: judicial independence. In a Union based on the rule of law, the European Court of Justice ruled, effective judicial review, including respect for fundamental rights, is of central importance.Footnote ⁴³ The right to effective judicial protection is again described as “one of the general principles of law stemming from the constitutional traditions common to the Member States.”Footnote ⁴⁴ The Court links this idea then to the ECHR and its protection of a fair trial in Article 6 – and to the right to an independent tribunal thereunder.Footnote ⁴⁵ This is yet another example of how the two supranational European courts acted in concert to erect today’s rule-of-law edifice.

2 Entrenching and Defining the Rule of Law in Treaty Texts and through Reports by Supranational Institutions

By the beginning of the 1990s, the European courts had spelled out most of the core principles that fall within the broader concept of the rule of law. While the Council of Europe institutions, in both the Convention preamble and Article 3 of the Statute of the Council of Europe, specifically mention the rule of law, European Community documents did not do so until 1992.Footnote ⁴⁶ But very much in line with a greater focus on democracy and human rights, this marked the beginning of a legal order in which the rule of law is deeply enshrined in all treaty texts. Not only is it a value on which the Union is founded (see Article 2(1) TEU). Respect for and the willingness to promote the rule of law are required to apply for membership in the European Union under Article 49(1) TEU. Also, in its external relations, under Article 21(1) and (2) TEU, rule-of-law considerations are paramount. But one crucial element continued to be missing: No text offered a clear definition of what is meant by the rule of law, let alone one that is actionable in court. Developing such a definition fell to Europe’s supranational institutions.

An important first step in this regard was taken by the Venice Commission of the Council of Europe, which conducted an intensive survey of what the rule of law entails.Footnote ⁴⁷ Later, this merged into a Rule of Law Checklist.Footnote ⁴⁸ Their contents mostly mirror what the European Commission now considers its core definition of the rule of law, and what eventually made its way into recent European legislation on the “conditionality mechanism” (see Section 3). All in all, there seems to be a rather robust understanding of what the rule of law entails, legality being a core element.Footnote ⁴⁹ It is worth quoting the definition in full:

Under this definition, there is a strong nexus between democratic values, human rights, and the rule of law.Footnote ⁵¹ The European Court of Human Rights, for example, considers the rule of law inherent in all the articles of the ECHR.Footnote ⁵² The European Commission is of the opinion that “there can be no democracy and respect for fundamental human rights without the rule of law and vice versa.”Footnote ⁵³ We note in passing that this formulation, unlike the view laid out at the beginning of this chapter, does not contemplate a rule-of-law system without democracy. But it seems to be one very important feature of how supranational institutions understand the rule of law today. It is a value-driven approach, developed through the institutional dialogue emphasized by TLO theory. The European Commission, the Venice Commission, and the two European Courts, all relied on each other’s work when weaving an ever-stronger understanding of what the rule of law entails. This shared understanding draws strength from the fact that it is anchored in multiple normative systems:Footnote ⁵⁴ the shared traditions of the European nation-states, the ECHR, and the TEU.

3 Values Put to the Test: The Rule-of-Law Crisis in Hungary and Poland, a Multitude of Supranational Responses, and Constitutional Questions

At a normative level, then, Europe has a robust understanding of what the rule of law entails. But when confronted by the backsliding countries of (at the time) Poland and Hungary, the institutional structures face a new challenge, which has exposed deep tensions in the project. When the European Union was founded, the rule of law in its member states was taken for granted. The new challenge is for European institutions to enforce the rule of law against its own member states. This is where the rule-of-law conflict goes to the very nature of the European project: even if they are appalled by how Hungary and Poland (before the October 2023 elections that ended the rule of the Law and Justice Party) behaved, defenders of the traditional view of member states’ sovereignty might, as a matter of principle, feel uneasy when the European level enforces quasi-constitutional norms such as the rule of law.Footnote ⁵⁵

Against this backdrop, the supranational response to the rule-of-law backsliding in Hungary and Poland consisted of three approaches, both politically and legally, of varying novelty. First, the European actors tried to stay very much within the lines of the treaty text. Second, the European Court of Justice opened the door to infringement actions that address one general rule-of-law shortcoming: the lack of an independent judiciary. Third, there is the new conditionality mechanism, through which EU funds are conditioned on the member states maintaining the rule of law, more thickly formulated.

1 An Historical Moment

The Security Council’s engagements with the rule of law can be traced back to its very first meeting, on January 17, 1946, when the French ambassador Vincent Auriol observed: “[W]e are ushering in an epoch of law among peoples and of justice among nations. The UN Security Council’s task is a heavy one, but it will be sustained … by our remembrance of the sufferings of all those who fought and died that the rule of law might prevail.”Footnote ⁷ Yet, despite this early appearance in the work of the Security Council, the rule of law featured rarely in the Council’s deliberations as the Cold War set in. But it would return with a vengeance following the end of the Cold War, when the concept would become increasingly influential in the UNSC’s deliberations and decisions.Footnote ⁸

Our research pivots on a key moment early in the first decade of the twenty-first century. On September 24, 2003, the Security Council held the inaugural meeting on its new agenda item entitled “Justice and the Rule of Law.” The first speaker at that meeting, Secretary-General Kofi Annan, observed that: “This Council has a very heavy responsibility to promote justice and the rule of law in its efforts to maintain international peace and security. This applies both internationally and in rebuilding shattered societies.”Footnote ⁹

Arguably, Secretary-General Kofi Annan’s clarion call for a UN rule-of-law agenda in his speech of September 24, 2003, marked a turning point for the UNSC. It was an occasion in which Farrall was informally, even serendipitously, implicated (see Appendix 2). The UNSC sessions on ROL in 2003 and 2004 brought to a head numbers of issues that had been arising in global peace and security since the end of the Cold War and opened up prospects for new normative orders in which variants of ROL might be institutionalized as TLOs. The initial UNSC meeting on the rule of law paved the way for the Council’s sustained engagement with the concept, beginning with its consideration, the following year, of a definition proposed by the Secretary-General to guide the UN’s work.Footnote ¹⁰

We treat the years from 1990 to 2003/2004, and the pivotal moment in the 2003/2004 UNSC sessions on ROL, as a recognition of the dramatic expansion of activity that occurred in the UNSC’s use of its powers to maintain international peace and security following the end of the Cold War and the accompanying decades of paralysis in Security Council decision-making caused by ideological antagonism between key permanent members from both the East and the West.

2 A Hard Case

We acknowledge that it is open to debate whether the ROL does or might serve as a constraint on UNSC activities. The UN’s founders unashamedly established the Council as a political body, pairing the lofty aspirational ideals set out in the UN’s principles and purposes, including the promotion of equality and justice, with the pragmatic concession to five great powers (P5) of permanent membership and an accompanying veto power. This marriage of convenience between principle and pragmatism secured the participation of those most capable of destabilizing the new experiment in international organization by granting each of the five permanent members the capacity to prevent the UNSC from taking action by exercising its veto.

This fact, combined with the Charter’s vagueness surrounding the limits on the UNSC’s exercise of its Chapter VII powers, has led commentators to bemoan both the Council’s capacity to do pretty much whatever it wants when the P5 do not disagree, as well as its incapacity, due to the veto, to ensure that it exercises its powers to maintain international peace and security in a consistent, impartial manner.

The UNSC undeniably represents a ‘hard’ case when it comes to evaluating it as a ROL/TLO case study. Indeed, it struggles to satisfy most of the checks and balances to arbitrariness identified by Shaffer and Sandholtz, such as application of law to rulers; predictability of published rules; available fora for bringing challenges; proportionate link of means to end so that they have some factual grounding; and reason-giving.Footnote ¹¹ Yet the fact that the UNSC’s decisions are binding upon all UN member states under Article 25 of the Charter reinforces the direct relevance of the ROL to its work: the UNSC relies on member states to implement its decisions in good faith in order to be an effective ROL-creator. This raises the stakes when it comes to the UNSC’s performance as a ROL-adherent.

3 A Restricted Focus

Our research design can be positioned with regard to important scholarly interpretations and interventions on UNSC activities vis-à-vis the ROL and with respect to our own empirical data and methods.

With respect to scholarly framing, there are several studies of the contemporary role and activities of the UNSC in general,Footnote ¹² yet before 2010 the effect of the concept of the rule of law on UNSC practice had attracted less scholarly attention. While there was already a substantial literature on the general promotion of the rule of law as part of development and peacebuilding,Footnote ¹³ less scholarship had analyzed the particular role of the UNSC in promoting the rule of law or the extent to which the UNSC’s activities to maintain international peace and security themselves promote the rule of law. Some legal scholars had explored whether and how the Council’s almost unfettered power to take Chapter VII action might be reconciled with the notion of the rule of law.Footnote ¹⁴ Others had examined the UNSC’s relationship with the rule of law in carrying out particular activities, such as imposing sanctionsFootnote ¹⁵ or deploying peacekeeping operations.Footnote ¹⁶ But prior to Charlesworth and Farrall’s Australian Research Council-funded partnership with the Australian Civil Military Centre on the project Strengthening the Rule of Law through the UN Security Council, there had been a dearth of systematic studies examining the theory and practice of the UNSC’s relationship with the rule of law when employing its most prominent tools to maintain international peace and security: peace operations, sanctions, and the use of force.

An exception is Chesterman’s earlier work on UNSC and the rule of law in cooperation with the Austrian government.Footnote ¹⁷ Using examples from various UNSC activities, his research provides a general analysis of the UNSC in different “modes” of decision-making, such as “legislator,” “executive,” and “judge.” He does not, however, study comprehensively or systematically the theory and practice of the UNSC and ROL in any particular one of the UNSC’s mandates, including the now well-defined UNSC spheres of activity in peacekeeping, sanctions, and use of force. Chesterman’s policy proposals, moreover, exude more confidence in the prospect of extrapolating the institutional separation of powers model within states to the global domain.

Most recently, Scheppele and her colleaguesFootnote ¹⁸ have offered a powerful critique of the UNSC’s adherence to the ROL in its interventions directed at anti-terrorism. Perversely, argues Scheppele, the UNSC in an “imperial mode” subverts the ROL, not only setting itself above these norms but wilfully acting contrary to the very values it preaches to the world. Dominated by the P5,Footnote ¹⁹ and the common cause found by an otherwise divided P3 (US, UK, France) v. P2 (Russia and China), the UNSC permits, even promotes, the expediency of force, sacrificing the inconvenience of ROL norms for an instrumental goal.

Although both these frames warrant careful engagement on their own terms, we take a more defined and constrained approach. Our exclusive focus on peacekeeping, sanctions, and use of force, which share some overlaps with both Chesterman’s and Scheppele’s work, nevertheless bounds us more closely to appraise the breadth and depth of UNSC decision-making and behavior vis-à-vis the ROL. By restricting ourselves to these three areas of UNSC action – peacekeeping, sanctions, and force – we attend to the pointy end of Council activity, as they are perhaps the most well-publicized, ambitious, and controversial measures it employs to fulfil its primary responsibility under the UN Charter for the maintenance of international peace and security.Footnote ²⁰

4 Interior Empirical Data

Our empirical design combines two bodies of data. Like other scholars, we draw heavily on official sources. Unlike most other scholarship, we benefit from the interplay of Farrall’s participant observation internal to the UNSC operations and his involvement in external activism by academics, civil society, the military, and states to reshape ROL practices internal to the UNSC and externally in its operations. Our perspective for this narrative overview ranges across insider and outsider roles, encompassing different periods in which Farrall has undertaken stretches of insider and outsider observance, as well as stints in which he has engaged actively as a participant with the intent to strengthen the UNSC’s capacity both to promote and to respect the rule of law. Farrall interned at a UN-accredited nongovernmental organization (the Quaker United Nations Office, 1996–97) and was later a UN Secretariat staffer working inside the UNSC and its sanctions committees in New York (2001–04), on the UN Secretary-General’s Good Offices Mediation Team in Cyprus (2004, 2008), and for the UN’s then biggest peace operation, the UN Mission in Liberia (2004–06). As a scholar, he worked initially on UN sanctions and international law (1998–2004) and subsequently as an Australian Research Council chief investigator on two multiyear research projects analyzing the UNSC and its relationship to the rule of law (2011–22).Footnote ²¹

Across these roles, he has sought to influence the UNSC’s relationship with the ROL in at least three ways. First, his book United Nations Sanctions and the Rule of LawFootnote ²² presents in an appendix a series of basic policy recommendations to increase the Council’s capacity to reinforce the rule of law through its sanctions practice.Footnote ²³ Second, in March 2016, Hilary Charlesworth and Jeremy Farrall, with accompanying expert commentary by Terence Halliday, presented sixty-six policy proposals for strengthening the ROL through the UNSC to a packed conference room at UN headquarters in New York, following which the document setting out the proposals was published as an official UNSC document.Footnote ²⁴ Third, with his colleagues on the E10 Influence Project, he has developed an analytical framework to evaluate and demonstrate instances in which elected members (the so-called E10) have shaped UNSC outputs, despite the fact that they do not possess a veto power.Footnote ²⁵ Drawing on empirical studies of E10 influence, the project is advancing proposals to enhance the capacity of the E10 to influence UNSC decision-making.Footnote ²⁶

1 UNSC Formal Powers to Promote the Rule of Law: A Double-Edged Sword

The UN Charter grants the Council primary responsibility for the maintenance of international peace and security.Footnote ²⁷ The Charter further equips the Council with a wide range of powers to promote the peaceful settlement of international disputes,Footnote ²⁸ and to take coercive action, including mandating the application of sanctions and authorizing the use of force, to maintain or restore international peace (Chapter VII).Footnote ²⁹ Critically, the Charter also requires all UN member states to give effect to the Council’s decisions (Article 25), thus giving those decisions the force of law.

This ability to take legally binding decisions gives the Council substantial capacity to promote the rule of law in international affairs. Ultimately, the Council’s effectiveness hinges on the capacity and willingness of UN member states to take the necessary steps to convert its decisions into action.Footnote ³⁰ States are more likely to do this if the Council has a reputation for promoting and respecting the rule of law.

2 The UNSC’s Expanding Use of Its Powers since the End of the Cold War

In the UN’s first four-and-a-half decades, the ideological divide between East and West severely restricted the UNSC’s ability to exercise its powers to promote peaceful settlement and maintain international peace and security, with the consequence that the intervention tools we focus on here – namely, peacekeeping, sanctions, and force – were rarely employed. As a consequence of the infrequency of UNSC action in its first four decades, much of the Cold War era scholarly literature on the Council’s powers, including in particular its Chapter VII powers to apply sanctions and authorize the use of force, focused on the question of how to enable the Council to use its powers more regularly.Footnote ³¹ The notion that the Council might exceed its Chapter VII authority was practically unimaginable to the Cold War academy. However, things changed dramatically after the Cold War, with the Council expanding its activities across all three areas.

The development of peacekeeping is widely considered to be a Cold War success story. Peacekeeping was an innovation borne of necessity in the UN’s early years, when it proved impossible to realize the Charter’s vision of UN member states contributing their own military forces to a standing UN army under UN command.Footnote ³² Instead, the Secretary-General worked initially with the UN General Assembly, then increasingly with the UNSC, to deploy peacekeepers between hostile forces who had agreed to ceasefires. From 1946 until 1988, the UN established thirteen peacekeeping operations (PKOs). These first-generation operations, premised on three core peacekeeping principles of consent, impartiality, and non-use of force (except in self-defense), were generally tasked with the basic responsibility of monitoring ceasefire lines. Following the end of the Cold War, however, the incidence, scope, and ambition of peace operations expanded significantly. Since 1988, the UNSC has created fifty-eight additional PKOs, deployed around the globe, from Haiti to East Timor and from the Balkans to Mozambique. These post-Cold War operations have been tasked with a broad range of responsibilities. In the case of UN transitional administrations in Kosovo and Timor-Leste, this has even included responsibility for practically all the tasks normally carried out by state institutions. Of particular interest for this chapter, twenty-first-century peace operations have routinely been mandated to strengthen the ROL, with a focus on (re)building police forces, corrections facilities, and judicial systems.

In the area of sanctions, between 1946 and 1989 the UNSC was only able to apply two sanctions regimes. In 1966 the Council applied its very first sanctions regime against the illegal white minority government of Ian Smith in Southern Rhodesia.Footnote ³³ In 1977 the Council applied its second sanctions regime, comprising an arms embargo, against the apartheid administration in South Africa.Footnote ³⁴ Since the end of the Cold War, however, the Security Council has been able to achieve the necessary agreement to impose sanctions far more frequently. In the twenty-five years since the Cold War, the Council has created thirty-two additional sanctions regimes, bringing the total number of UN sanctions regimes to thirty-four.Footnote ³⁵ The Council has employed its sanctions powers so frequently in the post-Cold War era that the focus of contemporary scholarly literature now tends to be on how to constrain, rather than facilitate, the Council’s use of sanctions.Footnote ³⁶

In the area of force, Blokker has observed that during the Cold War it was “inconceivable” that the UNSC would authorize the use of force.Footnote ³⁷ However, there was one extraordinary instance during the Cold War. It occurred on July 7, 1950, when the Soviet Union made the ill-judged decision to absent itself from a UNSC meeting on the item “Complaint of aggression upon the Republic of Korea,” in protest at the alleged misrepresentation of China on the UNSC. However, with the Soviet Union not present to exercise a veto, the UNSC subsequently proceeded to adopt Resolution 84 (1950), in which it determined that an armed attack upon the Republic of Korea by forces from North Korea constituted a breach of the peace,Footnote ³⁸ then recommended that UN member states assist the Republic of Korea by making military forces available to a unified command under the United States.Footnote ³⁹ As with peacekeeping and sanctions, the UNSC’s authorizations of force have increased substantially since the end of the Cold War. Writing in 2000, Blokker identifies twenty-seven resolutions containing authorizations of force – for purposes including the enforcement of sanctions, liberating a country from foreign occupation, and returning to power ousted legitimate authorities – spanning eleven situations on the Council’s agenda, ranging from Iraq in 1990 to East Timor in 1999.Footnote ⁴⁰ Bannelier and Christakis trace an additional twenty-one resolutions authorizing the use of force between 2000 and 2014.Footnote ⁴¹

3 ROL Challenges in the Areas of Peacekeeping, Sanctions, and Force

The Security Council has taken important steps since 1990 to strengthen the rule of law through its use of peace operations, sanctions, and force. However, considerable ROL challenges remain.

In the area of peacekeeping, while the Council has routinely included the task of strengthening the rule of law in the mandates of its twenty-first-century multidimensional peace operations,Footnote ⁴² inadequate responses to peacekeeping misconduct scandals during this same period, including in the Democratic Republic of Congo and the Central African Republic, revealed that peace operations and peacekeepers were not always held to the same legal standards as those whose peace they were keeping.

In the area of sanctions, in 2009 the Council made a significant effort to provide greater due process afforded to individuals subject to targeted sanctions under the 1267 (Taliban/Al Qaida) sanctions regime by creating the Office of the Ombudsperson.Footnote ⁴³ In 2011, when the Council split that sanctions regime into two separate regimes – the 1988 (Taliban) and 1989 (Al Qaida) sanctions regimes – it empowered the Office of the Ombudsperson, which would now apply only to the 1989 sanctions regime, to investigate the grounds upon which individuals were included in the targeted sanctions list and, when appropriate, to recommend delisting.Footnote ⁴⁴ Moreover, the Council clarified that the Ombudsperson’s delisting recommendations must be implemented unless the 1267/1989 sanctions committee as a whole or the Council itself were to decide otherwise.Footnote ⁴⁵ Nevertheless, despite this significant improvement in the due process accorded to individuals on the 1989 Al Qaida sanctions list, those on the other (dozen or so) active targeted sanctions lists do not have recourse to any Ombudsperson process.

In the area of force, the endorsement of the “responsibility to protect” doctrine by member states in 2005 recognized the responsibility of all states to protect their own civilians threatened by genocide, crimes against humanity, ethnic cleansing, and war crimes.Footnote ⁴⁶ Where a state was unwilling or unable to meet its responsibility to protect, there was now a responsibility on the international community to intervene to protect those civilians, using force when necessary and acting through the Council. This new doctrine sought to introduce more principled decision-making into the highly politically charged environment surrounding decision-making on the prospective use of force. Yet excesses in the implementation of the Council’s authorization to use force to protect civilians in Libya under Resolution 1973 (2011) raised concerns about the Council’s accountability under the rule of law.Footnote ⁴⁷

The Council’s capacity to serve as an effective promoter of the rule of law and guardian of international peace and security is shaped by its response to these challenges. There is thus a strong need to continue refining the way in which the Council’s decisions and activities both promote and respect the rule of law.

1 Discourse

We designate as “discourse” the bundle of abstract formulations about the rule of law that are expressed through speeches, policy statements, academic writings, and reflective commentary in the public sphere that is brought to bear on the UN in general and the UNSC in particular. These correspond substantially to the “meta-principle” of rule of law identified by Shaffer and Sandholtz.Footnote ⁵⁰ Each discursive form has its own distinctive properties, its own internal logic, rhetorical characteristics, epistemological frames, target audiences, arenas of engagement, and platforms for presentation. While these warrant much more refined empirical analyses in their own right, for present purposes we proceed on the basis of a primary distinction between internal and external forums or arenas in which discourse is situated.

The internal rhetoric on ROL is well marked by Secretary-General Kofi Annan’s pivotal speech on September 24, 2003. The speech points to the wider phenomenon of rhetorical expression of ROL in pronouncements, statements, and justifications by actors within the UNSC, within the UN, and in the wider international community of nations. In his analysis of UNSC resolutions in the decade before 2005, Farrall observed that its pronouncements on the rule of law were “increasingly frequent,” yet “fluid” in meaning, “elusive” and “chameleon-like.”Footnote ⁵¹ At least five clusters of meaning variously pointed to “law and order” or “holding criminals accountable,” to “principled governance” or “protection and promotion of human rights,” or to “resolving conflicts in accordance with law.”Footnote ⁵² Sometimes these complemented each other, sometimes one or another appeared, and sometimes it was unclear which of these adequately captured the vague allusions of a resolution. They functioned as rallying calls for adherence to abstract ideals which might serve as an umbrella for normative consensus and as legitimation for UNSC action. As rhetoric, they valorized an inchoate ideal that arguably had an inner core of commitment to minimizing the “misuse or abuse of political power.”Footnote ⁵³ We shall observe, however, that between 2003 and 2020 the discourse within the UNSC became more clearly articulated and sharpened as it was expressed in action items and pragmatic recommendations (see Appendix 1).

External formulations of ROL of course rest upon the vast scholarly literature on ROL in its historical emergence, comparative and contextual expression, and philosophical and theoretical debates.Footnote ⁵⁴ Our focus, however, adheres more closely to scholarship that holds the UNSC itself to account under ROL norms.Footnote ⁵⁵ Here, we position ourselves more closely to Chesterman’s ambitious and optimistic agenda for the UNSC to extrapolate from an institutional configuration within states to a global configuration across states, and less closely to Scheppele’s pessimistic indictment of the UNSC as a subverter rather than propagator of ROL beyond the UNSC in its anti-terrorism activities following 9/11. Our focus is particular – on use of force, peacekeeping, and sanctions – and limited on what might be possible in the milieux of power within the UNSC.

It is also disciplined by an interior awareness of how the UNSC functions in day-to-day activities and is conditioned by a realism of what is conceivably possible, given that other realism of great-power politics. Here, we find an affinity with Krygier’s efforts to valorize ROL as a prevailing value, rhetorically expressed as “tempering unbridled power,” yet to undertake research on what means to this end will fit a context “where the institutions typically thought of in connection with the ROL in domestic circumstances don’t exist in the international arena.”Footnote ⁵⁶

2 Procedure and Rules

If the multiple discourses of ROL could arguably be convergent on a generic ideal of checking power, the procedures and rules within the UNSC offer a midlevel of doctrinal specification where empirical research can disclose whether discernible rules or implicit rule-bound actions reflect the higher ideals in ROL discourse.Footnote ⁵⁷ At this midlevel, principles and rules can be layered. In their policy proposals to the UNSC in 2016, Farrall, Charlesworth, and Ryan advance a responsive model of the ROL centered on four basic principles: transparency, consistency, accountability, and engagement.Footnote ⁵⁸ However, they extrapolate directly from these to specific recommendations that might be construed as rules.Footnote ⁵⁹

For ROL recommendations-cum-rules internal to the UNSC, for instance, they propose, under the principle of transparency in peace operations, that “[w]hen the Security Council creates or modifies a peace operation mandate that seeks to strengthen the rule of law, the Council should ensure that the mandate clearly identifies the operation’s central rule-of-law objectives” (Recommendation 10, p. 43). Under the principle of accountability as it is applied to UNSC use of force, they recommend that the UNSC adopt a practice, or operational rule, whereby “[t]he Security Council should request regular briefings by states and groups of states implementing use of force mandates” (Recommendation 57, p. 48).

For ROL recommendations-cum-rules external to the UNSC, on peacekeeping, in adherence to the principle of transparency, they propose that “[t]he Security Council should request the Secretary-General to undertake periodic qualitative and quantitative monitoring and evaluation of each peace operation’s rule-of-law objectives (Recommendation 12, p. 43); and in keeping with the principle of accountability, they propose that “[w]hen the Security Council establishes or extends the mandate of a peace operation, it should emphasise the need for troop-contributing countries to ensure accountability for the investigation and prosecution of allegations of serious crimes by their troops” (Recommendation 19, p. 44).

3 Structures

The ROL as an institutional configuration within states is conventionally understood to require countervailing institutions that divide power and balance it among them. Whether through a separation of powers among executives, legislatures, and judiciaries, or a division of government between federal and subsidiary centers of government, or variants on fracturing power within the state and balancing it with forces outside the state, this structural element of ROL appears integral to its ability to temper power. This, of course, raises the vexing question: Is it empirically, theoretically, or normatively acceptable to extrapolate from institutional configurations within a state to the global order writ large?

Can we treat the UNSC as such an extrapolation? Critics of the UNSC’s wide-ranging powers have argued that the Charter permits it to act above the law,Footnote ⁶⁰ even enabling it to engage in imperialism.Footnote ⁶¹ While the UN’s founders might have anticipated that two of the UN’s other primary organs – namely, the UN General Assembly and the International Court of Justice – would play the roles of global legislature and judiciary, thus balancing the UNSC’s executive mode, the Charter system falls short of a meaningful separation of powers. Indeed, as Chesterman has persuasively argued, the UNSC’s practice in the Cold War era reveals instances of the UNSC itself acting in executive, judicial, and legislative modes.Footnote ⁶² Nevertheless, the process of structural differentiation, with a prospect of allocating power to different social entities across different mandates of the UNSC, may open up a line of inquiry to appraise such prospects within the UN itself.

Internal to the UNSC we observe minimal and fragile, but discernible, structures that may contribute to UNSC accountability and transparency, among other principles. Eight social entities of one or another kind have been created to advise, enable, and monitor the UNSC’s ROL initiatives.Footnote ⁶³ To what extent do they perform purely executive functions without any degrees of freedom, or can they exert de facto limits or influences on UNSC actions? For instance, the sanctions committees display variations in their adherence to ROL norms in the procedures and working methods they adopt to execute UNSC imposition of sanctions, to administer exemptions, and to evaluate humanitarian impact, among others. For a time, a Working Group on General Issues of Sanctions convened to produce recommendations to improve the effectiveness of sanctions. Bodies of experts are created for each sanctions regime. Since 2003 on Liberia, and subsequently on Iraq, UNITA, Sierra Leone, Afghanistan/Al Qaida and Sudan, among others, they have become institutionalized and tasked with investigation of implementation and violations of sanctions. The experts are usually based in their home countries and undertake field missions to sanctions sites. Complementing them are monitoring bodies, based at UN headquarters in New York, and staffed by UN civil servants. They track implementation of sanctions and report periodically to the relevant sanctions committee. They tend to have a higher status and are more institutionalized than other expert bodies. None are permanent. Their terms and mandates are extended from time to time until the sanctions regime is terminated.

The most important of subsidiary or partially differentiated bodies within the UNSC may be the formation of the Ombudsperson’s office in the sanctions regime.Footnote ⁶⁴ Established in 2009, this office was created to deal with applications by individuals and other targeted entities for delisting by the UNSC.Footnote ⁶⁵ Notably, its creation emerged from a series of criticisms after 1999 on the lack of due process in the sanctions regimes. Concerns expressed by many member states obtained legal impetus when the European Court of Justice brought its international juridical authority to bear in the litigation over the Kadi case.Footnote ⁶⁶ Here, a global body, the UNSC, hitherto for the most part unchecked by any judicial body of comparable jurisdiction, was prompted to improve the fairness of its sanctions procedures due to a decision by a court with a notable regional, but no global, jurisdiction.

Prost,Footnote ⁶⁷ a serving Ombudsperson for the Security Council Al-Qaida Sanctions Committee, has asserted that the Ombudsperson’s office “represents an important step forward in terms of enhancing the rule of law at the international level.”Footnote ⁶⁸ In her 2016 stocktaking, she maintains that elements of fairness and due process have been introduced, with varying degrees of success, in four aspects of the Ombudsperson’s proceedings: sharing evidence with petitioners of the case against them; giving them an opportunity to answer the charges in that case; seeking to obtain a more independent review of information salient to a case; and undertaking all this in a “fair and timely process.” These practices address the third source of arbitrariness identified by Shaffer and SandholtzFootnote ⁶⁹ – the need for individuals, or states, to question and respond to the way in which power is exercised over them. Nevertheless, Prost also concedes limits to transparency and fairness within proceedings, while confronting the fundamental underlying condition that the UNSC has kept the Ombudsperson’s office on a series of temporary extensions rather than giving it any kind of formal continuity and independence.

External structural and institutional tempering of power cannot come from arbiters external to the UNSC. While some international courts have addressed ROL issues in sanctions regimes, these instances are rare and haphazard, as no court exerts systemic or coherent constraints on the UNSC, even if they potentially influence its internal politicking and structural adaptations. Yet external structural expressions of UNSC ROL can be seen in certain issue areas where the UNSC seeks to get beyond itself: to temper power more directly through its peacekeeping forces; to set up or enhance existing structures to ensure that UNSC sanctions regimes, among others, do not abrogate ROL norms that apply to vulnerable populations; and to build ROL institutions within countries. Quite apart from the relative effectiveness of any of these modest extensions of ROL outside UNSC deliberations themselves, they nonetheless may be readily subverted by a perceived lack of adherence by the UNSC to ROL, as we have noted, whether in its internal deliberations or in its wholesale assertion of force by P5 states in seeming disregard for legal processes that would constrain naked power in pursuit of national interest.

1 Micro-TLOs in the Making?

A more precise grasp on ROL in the UNSC may be obtained by narrowing attention to the construction of three micro-TLOs – one on each of the UNSC’s mandates for peacekeeping, sanctions, and force. Arguably, these micro-TLOs in formation are vehicles for conforming the UNSC’s deliberations as a whole, both symbolically and as practice, to the meta-TLO expressed by its discursive proponents within and beyond the UN.

From 2000 to the present, we observe several successive, somewhat interconnected, initiatives to create a legal order in the UNSC that adheres to more explicitly articulated ROL procedural and structural norms. Nevertheless, the respective initiatives differ in their prescriptions. A TLO analysis begins to disentangle some of those convergences and divergences as an incipient episode of TLO-making that has unfolded since 2000.

An initiative, from the years 2004–08, began through cooperation between the government of Austria and NYU’s Institute for International Law and Justice (hereafter Austria/NYU). A subsequent initiative, in the years 2010–16 and beyond, was led principally by socio-legal scholars at the Australian National University and the government of Australia (hereafter Australia/ANU). Each resulted in a report delivered to the UN, included in UN proceedings, and delivered to UN forums. Thereafter, a continuing effort has been mounted to influence ROL in the UNSC by mobilizing elected UNSC members to exert their influence in ways not adequately recognized or mobilized until more recently.

The construction of TLOs, small or large, begins with a presenting problem purportedly to be solved by law.Footnote ⁷⁴ Each of the initiatives from below were animated respectively by the research of Chesterman on international humanitarian intervention, UN state-building and global administrative law,Footnote ⁷⁵ and Farrall’s work inside the UN Secretariat and research on UN sanctions and post-conflict peacebuilding.Footnote ⁷⁶ In all cases they observed deficits in UNSC decision-making, which subverted its legitimacy and probable effectiveness, and pathologies in UN practices in the field. In each case they observed manifest deviations from at least the spirit of high ROL ideals, and in each case it appears their initiatives were triggered by the explicit ROL turn in discourse as it was expressed in Kofi Annan’s 2003 speech and the UK’s effort to put ROL more prominently on the UNSC’s agenda. Significantly, in both cases the push for transnational reform came from ‘below’ and in a partnership of state and nonstate institutions.

Insofar as diagnostic struggles are an integral element of recursive cycles in the rise and fall of TLOs, we observe convergence and divergence. The earlier and later cycles of ROL-making share the view that UNSC-authorized operations fail frequently in their administration of sanctions, their control over peace-keeping forces, and their harms to vulnerable populations, such as women and children. Austria/NYU, however, approaching these problems from a global administrative law frame, diagnoses the problem as a failure of the UN essentially to adopt an institutional and procedural configuration of ROL that is conventional in well-established ROL orders within states. Failures are structural insofar as the UNSC and UN as a whole have not adequately differentiated the legislative, judicial, and executive functions and made the UNSC sufficiently accountable to a global judiciary. The UNSC has insufficient barriers to check what too easily can be abusive power. Australia/ANU, approaching these problems from a more socio-legal and regulatory governance perspective, observes a similar scope of UNSC breaches in the ROL, with particular attention to the deficiencies of sanctions regimes.Footnote ⁷⁷ While Australia/ANU can concur with the Austria/NYU depiction of the global order as deficient in institutional configurations that are morphologically parallel to those within states, it departs from the Austria/NYU in its appraisal of where the fulcrums of change can be found and in the realism of what prescriptions might follow.

A driver of TLOs in formation or reformation frequently is actor mismatch – those actors who write and promulgate the global norms are not inclusive of all the actors essential for implementation. Those left out use their powers of resistance or noncompliance or governance-skepticism to subvert international norms. It can be noted that in both the Austria/NYU and Australia/ANU proposals for ROL reforms in the UNSC there is an alliance of relative outsiders to the P5 power configuration within the UNSC. Austria used Chesterman’s report and the buildup to it to build its legitimacy and case for election to the Council in October 2008, prior to serving on the Council in 2009–10. In Australia’s case, its campaign for ROL reforms extended from a similar bid for UNSC elected membership, through the benefits amplified by Australia’s UNSC membership in 2013–14, where the Australia/ANU conferences on ROL in New York could profit from greater access to key players in and around the Council, including some P5 diplomats (US, UK), and to follow-through after Australia stepped off the UNSC. Put another way, whereas Austria/NYU rode an electoral bid before membership, Australia/ANU rode a rising wave into the UNSC, a bigger wave during UNSC membership, and then the longer wave of postmembership legacy protection.

Close analysis reveals two further differences. The Austria/NYU initiative is driven by a small state in cooperation with an academic institution. It is true that its many conferences during the years 2004–08 include numerous senior international law scholars, former senior and some serving UN officials, experienced former judges in international tribunals, and numbers of diplomats from small countries, but it is a configuration principally of outsiders to the UNSC and it has none of the force of P5 members. The ANU initiative several years later similarly mobilizes states and nonactors in its series of consultations in Canberra and New York. The Australia/ANU cycle of reform consultations, however, involves actors of a different hue. The ANU alliance with the Australian government is forged through a partnership with a whole-of-government body dedicated to promoting civil–military coordinated responses to natural and man-made disasters in the Asia–Pacific region. By including the military, with areas of expertise essential to peacekeeping and force, there is a legitimating inclusion of an actor integral to UNSC operations. Moreover, from the beginning the ANU project not only aligned itself with Australia’s ultimately successful bid to become an elected member of the UNSC for the term 2013–14, but its reformist cycle embraced and ratcheted up the aspirations of that large number of states that aspire to an elected two-year term on the UNSC.Footnote ⁷⁸ Further, the Australia/ANU proposal deliberately sought to translate the balance-of-power asymmetries between the P5 and E10 in the UNSC into a new idiom of UNSC debates, where ROL might present a common ground of discourse, procedure, and structure giving the E10 powers of persuasion that otherwise would be discounted or neglected.

The diagnoses and mix of actors in the Austria/NYU and Australia/ANU led to clear commonalities in principle in their respective sets of norms, but also observable differences. The fact that the Australia/ANU initiative could observe the substance and reception of the Austria/NYU proposals enabled the later cycle of proposed reforms and their propagation to adapt appropriately. To contrast each in broad brush strokes: Whereas the Austria/NYU report derived its recommendations from diffuse ROL norms, the Australia/ANU report explicitly articulated four master norms,Footnote ⁷⁹ themselves revised from an earlier set of five norms.Footnote ⁸⁰ Whereas the NYU ordered its expansive recommendations on the presumption that a state-like separation of powers can be established beyond the state, the Australia/ANU report took a more pragmatic strategy, judging that reforms were only feasible and more probable if they were modest and able to be implemented within the constraints of extant UNSC procedures and structures. Whereas the Austria/NYU report recommended that its diffuse norms be applied to a scattering of UNSC-related operations, the Australia/ANU report tightened its application of its four sets of explicit norms to the three designated areas of sanctions, peacekeeping, and force, thus more sharply linking the application of particular norms to particular spheres of UNSC decision-making and operations. And whereas the 2008 launch of the Austria/NYU norms took place prior to Austria’s UNSC term, with the aim of bolstering the legitimacy of its UNSC candidacy, the Australia/ANU ROL recommendations were launched in 2016, with the cosponsorship of Australia, as a recent UNSC member, and Japan, as a current member, supported by the UN Secretariat’s ROL unit within the Executive Office of the Secretary-General, in a chamber of 100 or more diplomats and staffers packed into a UN conference room at UN headquarters – a launch explicitly embedded within the motivating frame of increasing the impact of elected members of the UNSC before, during, and after their terms of office.

From Farrall’s initial focus on sanctions, to a widening of scope in the Austria/NYU norms, to the tightening and linking of explicit ROL norms to particular UNSC procedures and operations, the iterative process of three cycles both reinforced the pressure for ROL norms and brought the impetus for change more forthrightly into a broader set of impulses in the UN for the vast majority of states to exert greater influence in the UNSC as elected members.

Thus, we should see the succession of the Farrall (2007), Austria/NYU (2004–08) and Australia/ANU (2010–16) initiatives not as independent moments of intervention but as successive recursive cycles of multiple TLO-building efforts, which together constitute an episode to identify and propagate restraining norms that temper inconsistent and arbitrary exercises of unbridled power too often displayed by the UNSC. Focused TLO-building of norms respectively for peacekeeping, sanctions, and force was premised upon and might also lead to an expansive conformity of UNSC deliberations to a meta-TLO on ROL.

In subsequent related work on the E10 Influence Project, a team of scholars from the University of New South Wales, ANU, and the University of Queensland have interrogated a basic assumption underpinning conventional understandings of how the UNSC works – namely, that all of the power and influence on the UNSC resides with the P5 and that the elected members (E10) are just there to make up the numbers.Footnote ⁸¹ Farrall et al. (2020) identify three examples in which E10 members, working either individually in specific UNSC terms or collectively across multiple terms or different members, have been able to shape UNSC decision-making, despite the fact that they do not possess the raw power epitomized by the veto power.Footnote ⁸² All three examples – Brazil and Responsibility While Protecting; Australia and the human rights situation in North Korea; and a broad, sustained coalition comprising successive E10 members and UN member states not on the UNSC for the establishment of the 1267 OmbudspersonFootnote ⁸³ – represent attempts to rein in the UNSC’s propensity to undermine the ROL and thus to boost its capacity to strengthen the ROL.

The E10 Influence Project, like its predecessor, the Strengthening the ROL Project, has benefited from the engaged support of the Australian mission to the UN. The research team undertook multiple rounds of fieldwork in New York between 2016 and 2019, consulting widely with UN practitioners and diplomatic representatives in order to identify prospective examples of E10 influence. During this fieldwork, the Australian mission provided valuable strategic advice to the team, hosting multiple seminars, bringing the team in close conversation with current and candidate E10 members, on the opportunities and constraints facing the E10 when seeking to shape UNSC decision-making.

How then may we appraise this incipient TLO-making to tighten and sharpen ROL procedures and practices in the UNSC? Insofar as the ROL dimensions in Table 6.1 are salient to the UNSC, there is little doubt that the ROL came to be relatively institutionalized as a discursive frame and a standing agenda item for the UNSC, recurring repeatedly from 2003 to 2022 (Appendix I). The fact that the Austrian/NYU report and, even more, the Australian/ANU policy proposals on ROL could evoke growing attention by some P5 members, many E10 members, and states within the UN General Assembly in itself demonstrated a vibrancy of the ROL discourse in this global diplomatic context. Nonetheless, it is not uncontested. Russia, in particular, has in recent years resisted ROL items on the UNSC agenda. There is some evidence that some states may be adopting a discursive work-around, whereby they reach ROL issues but in the language of “accountability” or “justice,” among other less evocative terms.Footnote ⁸⁴

In terms of the reception by the UNSC of the procedures and rules proposed by the Australian/ANU report, the clearest example relates to the accountability of UN peacekeeping operations. Proposal 20 states that: “When the Security Council establishes or extends the mandate of a peace operation, it should reaffirm that allegations of sexual exploitation and abuse must be investigated and prosecuted by troop-contributing countries.”Footnote ⁸⁵ In the months following the distribution of the proposals,Footnote ⁸⁶ the UNSC included a provision requesting troop-contributing countries to ensure full accountability for acts of sexual exploitation and abuse by their troops in eight separate resolutions renewing the mandates of eight different peace operations.Footnote ⁸⁷ While it might be a stretch to claim that the UNSC would not have included this provision in these eight resolutions in the absence of Proposal 20, the fact that the UNSC did so at this moment indicates that the proposal was tapping into currents of change demanding greater ROL adherence by peacekeepers and their countries of origin.

The potentially most significant shift in constraining UNSC arbitrariness on sanctions came with the establishment of the Office of the Ombudsperson. The Australian/ANU report recommended that its temporary status be made permanent and that its restriction to one sanctions regime be expanded to others. De jure permanence has not happened; de facto continuity has taken place as the office has been extended to further terms. And just as a trigger event brought the office into being in the first instance, it is not inconceivable that another trigger event might ensure both its permanence and extension to other sanctions regimes.