International Conference: Rule of Law beyond the Nation-State: International, Supranational, Transnational Contexts
Centre for the Study of Constitutionalism of the Faculty of Political Science
Faculty of Law (University of Belgrade)
Serbian Association for Legal and Social Philosophy (IVR Serbia)
Rule of Law beyond the Nation-State: International, Supranational, Transnational Contexts
Venue: Faculty of Law, University of Belgrade
Program
Friday, September 10th
10.00 Welcome speech
10.10-10.35 Gianluigi Palombella (Sant’Anna School of Advanced Studies, Pisa), Legality, the Rule of law, and the Path to Inter-legality in the Extra-State Setting (online)
10.35-11.00 Michael Zürn (Free University Berlin), International Authority and Institutionalized Inequality (online)
11.00-11.25 Maria Varaki (King’s College London) – Rule of Law – A Sensibility of Decency and Moderation? (online)
11.25-11.45 Coffee Break
11.45-12.45 Discussion
12.45-14.00 Lunch Buffet
14.00-14.25 Gürkan Çapar (Sant’Anna School of Advanced Studies, Pisa) – A Voice from Karlsruhe: In the name of Rule of Law (online)
14.25-14.50 Niels Kirst (Dublin City University), Theodore Konstadinides (University of Essex) – The Second Phase of Constitutionalizing the Rule of Law in the European Union – between Least Common Denominator and Fully Harmonised Principle (in person)
14.50-15.15 Luka Glusac (Geneva Centre for Security Sector Governance) – Indirect Rule of Law Governance: Explaining the Relationship between the European Union and National Human Rights Institutions (in person)
15.15-15.30 Coffee Break
15.30-16.30 Discussion
20.00 Dinner
Link for the 1st conference day
https://ppma.webex.com/ppma/j.php?MTID=m6a0c6b65f9191312eea3ba5c36c3cfb0
Saturday, September 11th
10.00-10.25 Andreas Follesdal (University of Oslo), The (International) Rule of Law: Thin or Thick? (in person)
10.25-1o.50 Miodrag Jovanovic, Ana Zdravkovic (University of Belgrade) – Remedying Rule of Law Violations in the International Context (in person)
10.50-11.20 Discussion
11.20-11.35 Coffee Break
11.35-12.00 Seow Hon Tan (Singapore Management University) – Punishing Subjects Who Complied with Intolerably Unjust Laws (online)
12.00-12.25 Gautam Mohanty (O. P. Jindal Global University) – Tracing the Development of Rule of Law in International Investment Arbitration – Realising the True Potential (online)
12.25-12.50 Cristóbal Balbontin Gallo (Universidad Austral de Chile) – Arguments for a Decolonial Deconstruction of the Concept of “Rule of Law” and its Intercultural Reconstruction (online)
12.50-13.30 Discussion
13.30-14.30 Lunch Buffet
End of the conference
Link for the 2nd day conference
https://ppma.webex.com/ppma/j.php?MTID=m7cd5bac3c81ff946dd7b77cb435797ea
Abstracts
Gianluigi Palombella
Legality, the Rule of law, and the path to inter-legality in the extra-State setting
Depending on which (and whose) conception, the Rule of law can certainly be considered a pivotal notion in the beyond-the-State space, overcoming the limitations due to its most familiar connection to the State. Moreover, while the rule of law holds as a matter of a single legal order, and within its borders, it should not be narrowed down to a jurisdiction dependent and relative notion. Even the international legal order as any other legal ‘system’, should be ‘measured’ against an autonomous and independent concept of the Rule of Law.
The transformed scenario of law and regulation beyond the State generates the need to bring further our views on the rule of law, in a context characterised by the intermingling of functional regimes, regional and State based law. The law thrives as a composite fabric made of multiple sources belonging to separate orders and contributing in different modes and perspectives in regulating the same ‘objects’. What I consider the new ‘interlegal’ reality calls into question the role the function and the normative ideal of the rule of law in an even more challenging way.
Michael Zürn
International Authority and Institutionalized Inequality
We aim to show that the rise of global governance challenges traditional notions of sovereignty on two counts. It does not only compromise the supreme authority of sovereign states, it also undermines formal equality of states. The emerging result may be described as “institutionalized inequality.” Using a comprehensive database on the authority of IOs, we analyze with quantitative methods the association between international authority and institutionalized privileges for certain states. Furthermore, we also assess various contexts in which authority influences more or fewer institutionalized privileges. Our findings have significant implications for the understanding of international institutions and rule of law in world politics, including their delegitimation.
Maria Varaki
Rule of Law; a sensibility of decency and moderation?
The coronavirus pandemic (Covid-19) has forced millions of people around the globe to adapt their lifestyle into the new reality of quarantines, accompanied by emotional and apocalyptic headlines of deaths, therapies and conspiracy theories. Numbers have replaced human lives and political leaders are forced to exercise judgment in a decisive way, while taking decisions that literally affect the lives of common people. The production of effective vaccines and the appeal of some leaders and experts to make them a global public good has fundamentally questioned the essence of global justice.
Within this context the current contribution purports to understand the transformative impact (if any) on the RoL ideal, while highlighting the importance of ethical leadership as a tool of global governance. In this endeavour the paper will build upon the massively diverse scholarship on the nature and application of RoL (domestically/internationally, substantially/procedurally and politically/legally), propose an alternative consideration via both the angles of decency and moderation and examine the limits and potentials of this nuanced sensibility for the RoL in the fight for global justice.
Gürkan Çapar
A Voice from Karlsruhe: In the name of Rule of Law
The question of whether the national constitutional courts or CJEU has the kompetenz-kompetenz is still a matter of controversy even 60 years after the Van Gend en Loos[1], where the Court made explicit that the EU, unlike other international organizations, is an independent, autonomous, and novel legal order and have a direct effect not only on the member states but also on their citizens. Nevertheless, the courts of the member states, under the leadership of the BverfG and the Corte Constitutizionale, time and again call into question the supremacy of EU law with the claim that the competence of the EU is conferred by the member states[2] and that kompetenz-kompetenz, namely the competence to decide on its own competences, lies in the member states rather than the EU. The last round of this game has recently played by the PSPP judgment delivered by the BverfG in July 2020. The Court, contrary to its previous rulings, did not stop making threats of ultra vires review, and held that since the ECJ “fails to give consideration to the importance and scope of the principle of proportionality”, its judgment “of 11 December 2018 manifestly exceeds the mandate conferred upon it”[3]. Thus, “the judgment of the ECJ itself constitutes an ultra vires act and thus has no binding effect [in Germany]”[4].
As expected, the BverfG could not escape from criticism in the wake of this ruling. The first prong of the criticism is centered on the argument that the decision is a breach of the principle of rule of law, namely equal application of law in all member states. Quite a few scholars under the leadership of Daniel Kelemen issued a declaration titled ‘National Courts cannot override CJEU judgments” in support of the supremacy of the EU legal order[5]. It is plausible to summarize this criticism under the banner of argument from rule of law, namely equality before the law. This is indeed one of the main objections against constitutional pluralism, for pluralism, the same authors argue, do violate the fundamental principles of the ideal of rule of law. This idea is epitomized under Lon Fuller’s formal conception of rule of law where legal certainty, predictability, equal application of law to the norm-subjects bear significant importance.
This paper, by problematizing this cursory reading on the rule of law and legal (constitutional) pluralism, argue that rule of law is not only about equal application of law to the norm-subjects, rather it is also about showing respect to the rationality and dignity of each individual. This paper, by drawing attention to the tension between pluralism and rule of law and benefiting from the theories of Waldron[6], Palombella[7] and Krygier[8] on rule of law, will attempt to establish a connection between legal pluralism and the ideal of rule of law. In doing so, it aspires also to contribute to the discussions about the subjects of international rule of law[9] by arguing that in a supranational legal order like the EU where a minimum degree of democracy, rule of law and protection of fundamental rights are supposed to be achieved in the domestic legal orders, it can be argued that not only individuals but also the states as the representatives of individuals may be deemed to be the subject of international rule of law. In short, states may be considered the subjects of international rule of law as long as they provide sufficient protections of rule of law in their own legal orders. The article, drawing on these discussions, will analyze the PSPP judgment from the perspective of supranational rule of law and argue that what the BverfG demanded from the CJEU is the essence of the rule of law, i.e., the right to raise one’s voice before an independent court with the hope that not only will its arguments be taken seriously but also will the court provide a justification for its decision.
Niels Kirst, Theodore Konstadinides
The Second Phase of Constitutionalizing the Rule of Law in the European Union – between Least Common Denominator and Fully Harmonised Principle
The rule of law has attracted increasing attention at the European level in recent years. There is an established strand of scholarship in EU constitutional and administrative law concerning the codification and current application of the rule of law in the EU as a unitary and historical desideratum. In its majority, this scholarship assesses the extent to which the EU is moving towards a singular rule of law by focusing on the conceptualisation and justification of the rule of law in the EU and its administrative enforcement by the EU Institutions. Concerning the latter, commentators have focused on what the author calls the first phase of the rule of law constitutionalisation via the legal foundation in Article 2 of the Treaty on European Union (TEU) and the special oversight procedure under Article 7 TEU designed to hold national governments into account. 2021 marked a further step for the rule of law in the European Union (EU) with the advent of the rule of law Conditionality Regulation. This new instrument under EU secondary law signifies the second phase of consolidation of the rule of law in the European Union. For the first time, there is a legally defined concept of what the rule of law entails in Article 2 of the Regulation—sparking the question if such a fully defined unitary concept of the rule of law is desirable in a supranational legal order? Whether this is desirable, the Regulation will be a turning point in the rule of law discourse in the Union. Within the EU, the rule of law applies where the national rule of law already exists. Many Member States have a sophisticated discourse and long defined characteristics of the rule of law in their legal system. The second phase of constitutionalisation of the rule of law in the EU may lead to a situation in which a supranational rule of law, fully defined and exercised by the European Union, conflicts with national concepts of the rule of law. The consequences of this can already be seen in cases such as Republikka at the Court of Justice of the European Union (CJEU) or in the Annual Rule of Law Report by the European Commission. This contribution, therefore, inquires where the rule of law is headed in the EU and whether it is normatively desirable to have a least common denominator – as a thin conception of the rule of law, or a fully harmonised principle – as a thick conception of the rule of law – in a supranational legal system.
Luka Glušac
National Human Rights Institutions as Rule of Law Intermediaries of the European Commission
In its first Rule of Law Report, published in 2020, European Commission has stated that national human rights institutions (NHRIs) “play an important role as rule of law safeguard and can provide an independent check on the system in a rule of law crisis”. The EU has continuously affirmed its commitment to support and engage with NHRIs in both Member States and (potential) candidate countries. In the current EU Action Plan on Human Rights and Democracy 2020-2024, the EU has proclaimed its support to NHRIs, in line with the Paris and Venice principles.
NHRIs are a generic term for independent state bodies mandated to protect and promote human rights, most usually in the form of ombuds institutions or human rights commissions. Whilst the relations between the EU and Member States’ three traditional branches of power have inspired an extensive body of literature, research on the EU and NHRIs has been notably scarce. That is surprising given that NHRIs use various avenues of direct and indirect engagement with the EU institutions. With this research, I seek to contribute to filling this research gap, by concentrating on both empirical and theoretical aspects of the relationship between the EU and NHRIs.
I present empirical evidence to support my working theoretical hypothesis that the EU, represented by the European Commission, enlists NHRIs as intermediaries to strengthen the rule of law and human rights realization in the Member States and EU candidate countries, by providing material and ideational support to NHRIs. In that way, the EU enhances NHRIs’ capacities, effectiveness and legitimacy vis-à-vis targets, that is, national governments. I demonstrate that the Commission has developed a variety of instruments to support NHRIs of both the EU Member States and EU candidate countries and has invested efforts in strengthening their capacities to, inter alia, feed it with credible and objective information on the state of the rule of law on the national level. To show that, I analyze the EU track-record in this regard, as well as the new EU rule of law mechanisms and EU accession methodology.
With this research, I test whether Orchestrator-Intermediary Theory (OIT) – developed by Kenneth Abbott et Al (2015; 2015; 2016; 2018; 2020) and originally applied to NHRIs in the UN context by Tom Pegram (2015a; 2015b) – can be equally potent in explaining the nature of relation between the EU and NHRIs. I argue that the EU does not have any hard method of control over NHRIs, which makes framing their relationship in the Principal-Agent paradigm difficult. Instead, the EU relies on like-mindedness, that is, joint governance goal with NHRIs – protection and promotion of human rights and the rule of law. I examine whether all necessary preconditions for successful orchestration are in place. Furthermore, in light of most recent scholarship, I explore the nature of NHRIs as intermediaries, to assess if they are motivated solely by self-interest or by different types of loyalty (Abbot et Al, 2021).
Andreas Føllesdal
The (international) rule of law: thin or thick?
I consider whether the rule of law should be specified in a narrow direction focusing on predictability, or also including such standards as human rights.
I argue that a helpful way to ‘transpose’ domestic rule of law norms to international law and institutions is by taking one philosophical step back before moving forward. A first step is to identify which interests of individuals give us reason to value domestic rule of law standards. The same values that justify the domestic rule of law standards of impartiality, independence and accountability support similar standards for the international rule of law. Two central, related yet distinct interests of individuals are at stake: to enhance predictability about others’ conduct, and to promote ‘non-domination’ in the sense of reducing individuals’ risk of being subjected to arbitrary discretion by governments and other authorities. Such domination is objectionable even if the dominator is entirely predictable – e.g. if a dictator has stable preferences to maintain the regime.
Miodrag Jovanović, Ana Zdravković
Remedying Rule of Law Violations in the International Context
Recent squabble between the EU institutions and some member states, most notably Poland, has put at the forefront the phrase “rule of law violations”. This paper will try to address the same problem in the international context, that is, to try to detect possible manifestations of violation of the international rule of law. To start with, rule of law at the international level is as much as it is at the municipal level about curbing unrestrained political power within the boundaries of law. Different institutional setup at the international level, as well as the lack of hierarchy of formal sources of international law, creates less stable surrounding for the effective remedying of the rule of law violations. Nevertheless, it is possible to speak of several legal venues for addressing rule of law violations in the international context:
- to the extent that states are assuming the simultaneous role of international law-making and law-applying function, the first venue for remedying international rule of violation concerns the development of rules of states’ responsibility for internationally wrongful acts;
- insofar as Article 53 of Vienna Convention of the Law of Treaties introduces hierarchically superior, peremptory norms of international law, the second venue for remedying international rule of law violation concerns the solidification of the content of international jus cogens law, which excludes certain issues from the agenda of states’ treaty-making powers;
- since certain most heinous crimes committed by individuals affect the humanity as a whole, the third venue for remedying international rule of law violations concerns the progress of the regime of international criminal law;
- since international organizations have proliferated enormously and continue to expand their scope of activities and range of policy fields, there is, fourth, a growing concern for addressing their legal responsibility for human rights violations;
- finally, the last venue for addressing the problem of international rule of law violations concerns discussing civil and tort law liabilities of international organizations (e.g. UN peacekeeping missions)
Seow Hon Tan
Punishing Subjects Who Complied with Intolerably Unjust Laws
Radbruch’s Formula, which suggests that intolerably unjust laws are not law, presents two interesting conundrums when invoked by a tribunal effecting transitional justice. Suppose a law (‘Rule X’) orders for genocide while also mandating, on the pain of punishment, that subjects of the law report their neighbours for being of a particular race, so that those of the race can be effectively rounded up to be exterminated. Should a subject who reported his neighbour for being of the targeted race be punished by a tribunal effecting transitional justice? If Radbruch’s Formula is endorsed, Rule X is not law. The subject’s act is not justified by law. He has abetted in genocide. The first conundrum pertains to the subject having acted in accordance with what he might have believed to be law. Should he be excused? On the one hand, surely we cannot expect the subject to be aware of theoretical debates over the definition of law. Legal positivists such as Hart regard intolerably unjust laws as laws if the rule of recognition stipulates for their legal validity. How can a subject be expected to know that Rule X is not law according to Radbruch’s Formula? On the other hand, as a tribunal necessarily settles on what is legally valid or not, would this not straightforwardly be a case of ignorance of the law, which is generally not an excuse under criminal law? The second conundrum pertains to the subject having acted under duress. There is a threat of the coercive force of the state being used against him if he does not comply with its commands. Should he be excused, particularly if he risks a harsh penalty if he disobeys? How is this conundrum different from a situation of a terrorist ordering that one person kills another, on the threat of instant death? In the terrorist case, the defence of duress may not be available under criminal law in some jurisdictions for cases of intentional acts causing the death of another. I hope to examine these two conundrums and propose a reasoned and just solution, supposing that Radbruch’s Formula is accepted, to the question whether subjects should be punished for complying with intolerably unjust laws. In coming to this solution, I will consider what the rule of law entails, whether the Rome Statute of the International Criminal Court has any bearing on this matter, and the significance of the analogous situations in criminal laws of nation states.
Gautam Mohanty
Tracing the Development of Rule of Law in International Investment Arbitration – Realising the True Potential
The rise of international investment arbitration as one of the most rudimentary methods of settling disputes is well documented. However, the significance of the manifestation of rule of law and particularly the contribution of investment arbitration to the development of the rule of law is less discussed. Investment arbitration, although was initially touted with the sole purpose of promoting foreign investments in developing countries, it has now transitioned into several bilateral investment treaties with an exponential rise in cases. This paper will attempt to examine the general proposition that investment arbitration contributes to the notion of rule of law. The inherent features of investment arbitration such as strong disposition towards confidentiality, the unilateral appointment of arbitrators’ and the obligations of impartiality on the arbitrator highlight that the rule of law in the context of investment arbitration has an entirely attenuated connotation and not a traditional one. The critical examination of the extent to which investment arbitration does contribute to rule of law, especially in the present pandemic times, as global cross-border commerce is disrupted and reshaped, is pivotal for international dispute resolution systems’ efficacy. For much of its criticisms, the author is of the opinion that investment arbitration does possess the potential to positively further the process of the development of theoretical constructs of the rule of law through its norms and regulations. Notably, the paper will be divided into three sections: Part I will discuss the manifestation of the rule of law in international arbitration whilst focusing on international investment arbitration and attempt to assess whether there is a consensus about the understanding of rule of law in investment arbitration. Part II of the paper will investigate the contribution of international investment law, if any, to the idea of rule of law. Part III of the paper will attempt to put forth the potential of international investment arbitration to contribute positively to the evolution of the rule of law in developing countries.
Cristóbal Balbontin Gallo
Arguments for a Decolonial Deconstruction of the Concept of “Rule of Law” and its Intercultural Reconstruction
The Oxford English Dictionary defines Rule of Law as follows: “[t]he authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and
processes.” As we see, the term Rule of Law is closely related to constitutionalism, namely the principle that expresses that the authority of government derives from the constitution and is, at the same time, limited by a fundamental law that is grounded on the principle of souveragnity. Democracy as a form of government, supposes that souveragnity relies on the will of the people, which expresses the will of the majority with respect of minorities’ fundamental rights, which precisely imposes limits to the authority of any legitimate government.
Nevertheless, this concept of Rule of Law as well as its comprehension of democracy, can be criticized for its cultural western context that embodies a hole concept of Rule of Law that disregards any cultural consideration that embodies non-western minorities, conceiving fundamental individual rights that are build and understood following a cultural hintergrund with its modern and liberal approach that damages severely the possibility of subsistence of other forms of living.
The purpose of this presentation is therefor to argue the need for a decolonial thesis that gives due account to the normative status of the relationship to non-western minorities as well as the need of a intercultural reconstruction of rule of law, where this critique of a National State Rule of Law is argued on the perspective of a decolonial understanding of International Human Rights Law that goes beyond Nation-State.
[1] “…the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals”.
[2] See, Solange 1 And Solange II, and for counterlimits doctrine Frontini
[3] BverfG, 2 BvR 859/15, 05 May 2020, para. 119
[4] BverfG, 2 BvR 859/15, 05 May 2020, para. 119
[5] This paper will capitalize each word of the Rule of Law with a view to pointing to the principles of Rule of Law such as generality, predictability, foreseeability, and etc.
[6] Waldron, J. (2011). The rule of law and the importance of procedure. NOMOS: Am. Soc’y Pol. Legal Phil., 50, 3.
[7] Palombella, G. (2009). The rule of law and its core. Relocating the Rule of Law, Gianluigi Palombella, Neil Walker, eds., Hart Publishers.
[8] Krygier, M. (2011). Four Puzzles about the Rule of Law: Why, what, where? And who cares?. NOMOS: Am. Soc’y Pol. Legal Phil., 50, 64; Krygier, M. (2019). What’s the Point of the Rule of Law. Buff. L. Rev., 67, 743.
[9] Waldron, J. (2011). Are sovereigns entitled to the benefit of the international rule of law?. European Journal of International Law, 22(2), 315-343; Jovanović, M. A. (2015). Responsibility to Protect and the International Rule of Law. Chinese Journal of International Law, 14(4), 757-776; Jovanovic, M. (2015). The Quest for International Rule of Law and the Rise of Global Regulatory Regimes–Some Theoretical Preliminaries. Available at SSRN 2641158.
