The International Rule of Law and the Idea of Normative Authority

Abstract

Domestic and international jurisprudence exist and develop as two ‘pocket universes’ in a sense that they belong to the same fabric of reality, but at the same time many concepts shift their meaning when moved from one pocket to another. This is of a paramount importance for the idea of the rule of law, which in domestic setting was forged in the flame of civil wars and struggles against the rulers. This history and such struggles are something international law has never known, and thus any direct transplantation of the domestic images of the rule of law to international realm are doomed to fail. This entails a need in deconstructing the rule of law. Its core meaning (‘laws must be obeyed’), brings a normative claim relevant to any legal order. The idea of the (international) rule of law appears to be linked to the idea of authority of (international) law. There are differences of the structures of authority in domestic and international law as authority can be mediated or unmediated. Mediation of authority, typical for domestic law, presupposes the existence of officials that are functionally and institutionally differentiated from the subjects of law. Authority of international law is by and large unmediated because of its horizontal nature. Such reconstruction allows to reframe the central concern of the international rule of law enquiries. Instead of trying to fit it to the procrustean bed of domestic theories, international legal scholarship must focus on defining conditions under which international law’s claim to authority is realisable.

How to Problematize the Global?

“…143 When the post-Cold War Kantian politics overtook the Cold War Hobbesian politics, the inhibition in recognizing the normative potential of IR got diluted. Once this inhibition got diluted, the thinly theorized realm of 'the international' became thickly theorized 144 . Often, this thickly theorized realm was explained in terms of Kuhn's notion of 'paradigm shift': that is, 'why certain theories are legitimised.…”

Form and Flexibility: The Normalisation of ‘Magnitsky Sanctions’ in the Face of the Rule of Law

“…By virtue of the principle of sovereignty, state law does not need to be expressly authorised by international law, provided it is compatible with it. This means that assessing the international legality of these sanctionsand, therefore, their compatibility with the international rule of lawinevitably requires engagement with substantial aspects, in line with the definition of the international rule of law suggested by Gorobets (2020). Such aspects include the nature of the violation they seek to address and their own compatibility with other principles of international law, including jus cogens norms, fundamental rights, and specific treaty obligations (Barber 2021).…”