Correlation between two versions of the rule of law principle: dynamic for the target determination

Abstract

UDC 340.12

PQNKNHPQNKSQ vuh vuh Reminska Postgraduate Student at the Department of Theory of Law and State 7 aras Shevchenko National University of Kyiv

CORRELATION BETWEEN 7:2 VERSIONS OF THE RULE OF LAW

PRINCIPLE

DYNAMICS FOR THE TARGET DETERMINATION

The article constitutes an initial attempt to combine all existing in modern scientific literg ature approaches devoted to the interconnection of two rule of law versions – international and nationalh Accordinglyf the article illustrates the contextual interplay between two levels of legal ordersh Viewing interfaces between international rule of law principle and its domesg tic analogue through the prism of their correlationf the author marks out three important aspects in such synergyh On the basis of comparative researchf it is concluded that among most substantive correlation aspect is the dialectical nexus between rule of law principles that are operated both at the international and national levelsh

Key words rule of law principlef legal orderf correlation between international and national versions of rule of law principleh Problem statement and some ing troductory remarksh Rule of lawf as the universally recognized ideaf had not been immune from the intensive expansion of theoreticallygmethodological scientific ing vestigationsh This is mainly due to the fact that this principle provides civil society with an appropriate forum for motivating action by public authorities in the different areas of human activityf and thus promoting its essential valuesh pometimesf the inconsistg ency of national government’s action tog wards its citizens hinders successful develg opmenth qherebyf nationgbuilding requires

timef efforts and commitment in order for the process to make a positive contributionh keverthelessf inverse relationships between international community and national socieg ties have shown product of such cooperation has significant impact on legislative transg formation processes for both international and domestic legal systemsh That is why isg sues related to the development of the rule of law standards are still relevant and serve as a focal point in almost all modern scieng tific researchesh Recent trends in scientific researchesh It is hard enough to reflect all existing acg ademic works related to the investigation of the rule of law principleh Butf in the past decadef the number of researches has also

risen sharply owing to a certain changes in international legislative systemh Conseg quentlyf new aspects of the rule of law princig ple have emergedh marticularlyf among such aspects is the rule of law functioning at the international levelf its linkages and mutual interference with the corresponding national analogueh At the same timef overwhelming majority of scientific investigations is mostg ly devoted to the “pure international law” , while general theoretical “synergy” paramg eters of abovementioned mutual influences remain “invisible” for the modern rule of law scholarsh However , there are some academic works which are of the special theoretic interesth kamelyf among them are scientific articles

of AK Nollkaemper who focuses on the result of the interrelationships between internag tional rule of law and its national versionsh Another researcher from Netherlands – MK Kenatake has also drawn her attention to the existing interfaces between two varg iants of the rule of law principleh Additiong allyf abovementioned issue of “coexistence” had been the subject of scientific inquiry of such wellgknown scholars as BK Chimnif NK eachezf ) . keatef HK lwadaf JK taldronf AK tattsf JK toutersh At the same timef contemporary general theory of law is badly in need of a complete structural and categorical overhaul in our thinking about the rule of law importance ‹ Reminska vuh vuhf 2018

in the context of current global reformation processesh Analyzed above recent trends in scientific investigations regarding the rule of law pring ciplef have provided the author with an opg portunity to highlight the following principle objectives of the research to identify what interfaces are between two versions of the rule of law – international and national exactly what aspect of such interactions is crucial for the further substantive modification of the rule of law principleh Major ideas presentationh Present developments in the rule of law field show there is a growing trend in scholar’s world to use in academic literature two formulag tions – international rule of law and its nag tional analogueh This tends to suggest there

are some substantial differences between two abovementioned categoriesh bssentialg lyf the concept of international rule of law accumulates historicalf legal and socioculg tural features of both international organizag tions law and the law of different countries all over the world including certain national legal traditions .

However , among contemporary rule of law researchersf different approaches may prevail regarding the interaction between two versions of this principleh In this veinf former Judge of the International Court of gusticef HK Owada once pointed out “<«> analysis of the role of the Rule of Law as applied at the international level requires a reconceptualization of the principle in such a way as to take account of systemg atic differences between the domestic and international legal order” >1, ph 155@. With special emphasis on thisf in an attempt to understand the operation of rule of law in practicef it is alleged in the literature that the linkages between national and interg national rule of law can be analyzed from

three different positionsf among whichf particularlyf are how the concept of national rule of lawf understandsf accepts and resists on its international version how the concept of international rule of law understandsf accepts and opposes the national concept and 3 in what way can be assessed and appreciated such interacg tion by the international communityh Comg bining formal and material requirementsf the rule of law both at the level of national public law and international human rights law can be defined as the regulator of govg ernmental power . In other wordsf the rule

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conduct of the governmentf the exercise of its authority over individuals and legal entities within its jurisdictionh At the same timef it must be taken into account that the international rule of law is intended to regulate not only intergovernmental reg lationsf but also legal relations between international organizations and states or individualsh However , it should be borne in mind that the rules of international and national law may regulate the same legal relationship in a slightly different waysh Such simultaneous regulation creates a number of situations when the subjects of law are circumventedf which in its turn reg sulted in a conflict of law >2, ph 2–3@.

Within this range of issuesf position of BK Chimni can be deemed as reasonable oneh In particular , KH believes that the conceptual formulation of comprehensive international rule of law definition is complicated enough as the very idea of this principle was first articulated within the framework of national legal systems with those characteristics for examplef the existence of a constitutionf the limited nature of the executive power , jug dicial system with compulsory jurisdictionf certain forms of manifestation of the princig ple of separation of powers , which are eig ther absent at all or incompletely presented at the international level >3, ph 2 2@.

Against this backgroundf NK Hachez emg phasizes on the multifaceted and complex nature of the international legal order . qhusf two premises should be taken into account when addressing the issue of existing nexg XV between two versions of the rule of law principle formal differences between internag tional and domestic legal ordersf where the rule of law principle is actively functioning primarilyf national context presupposes rule of law’s essential task is to create approprig ate and effective mechanisms aimed at prog tection of the citizens legal subjects from governmental abuse along with thisf interg national framework implies the existence of suchgcalled “horizontal relationships”

between ptatesf that isf there is QR governg ment in its common sense substantial differences between interg national and domestic legal ordersf which is reflected in the structures of legal orders themselves there are limitation imposed on the legal subjects to exercise their governg mental power in this regard the question arise about the legality which the rule of law embodies hencef not all formal rule of law requirements can be transposed to the ing ternational legal order >4, ph 316–317@.

This has inspired the author to talk about the correlation between international and national rule of lawf which can be considered from the following perspectives significant discrepancy and issue of the balance possibility of the transposition of one verg sion to another and vice versa F dialectical interrelations between two versions of the rule of law principleh NK Significant discrepancy and issue of the balance between international and national rule of law principleh In one of his scientific works JK Waldron has stressed the difference between national and international rule of law lies primarily in different methods and ways of applying this principleh The absence of an “internag tional sovereign power as such is greatly

complicated by attempts to understand the purpose of international rule of lawf since the absence of centralized power means that international governmental bodies as well as the international legislative process may in some cases not comply with the requirements of the researched principle” >5, ph 317@.

The author agrees to a certain extent with this thesis and indicates the followingh rng like the national rule of lawf a key objective of the international version is not to prog tect individuals from arbitrary actions of the statef its agencies and officialsh At this levelf the rule of law is intended to create condig tions for equal and independent functioning of all countries in the world as fullgfledged subjects of international lawh curthermoref international rule of law serves as a toolkit for protection of the human rights and freeg doms which have been violated within the national legal systemh eeref international institutions are among the key actors that actively operate and develop the rule of law

principle during their “operations” . 7 R support abovementioned idea further , wellgknown theorist AK Watts believes differg ences between international rule of law and the rule of law operated within the nationg DO legal system frameworkf includes the objectives inherent in the rule of law pring ciple at the national level in this contextf commonlyf the rule of law includes the prog tection of the individuals rights against arg bitrary actions of state authorities more specific requirements of the rule of law pring ciple at the national level often reflect parg ticular historical and constitutional evolution of state given thisf international rule of law cannot be equated with its national anag

logue >6, ph 16@. It has been already mentioned above that the differences between international and national rule of law predominantly are analyzed from the perspective of national and international legal ordersf namely their institutional distinctionh fndeedf in comparig son with nationalf international legal order is characterized by a pretty weak institutionalg ization level and the complete lack of a ceng tralized and hierarchical organization of the exercise of power . fnsteadf such connections are themselves horizontal >7, ph 2 UI ph 1 2–1 , ph 75@. In this veinf some authors add that lawgmaking process is in itself at the international level differs by a certain diffusion dispersion . However ,

both in practice and within theoretical scig ence there is a clear division into a soft and hard lawf which helps to define the norms that are mandatory and norms that are not binding on subjects of international law >3, ph 2 2–2 3@.

Extending this approachf IK Hurd in his scientific article “International rule of law and the domestic analogy” argues followingh In reliance on the instrumental approach to the essence of international lawf the aug thor notes the certain differences between national and international rule of law are based on distinct functions they performh Within the national legal systemf the rule of law principle aims to establish restrictions on the exercise of state power and to ensure the stable functioning of the lawf norms of which will be applied equally to all citizens

of the particular stateh The concept of ing ternational rule of law is based on a slightly different model of the relationship between actors and international lawf which is basedf first of allf on the legitimacy of the obligag tions transfer through consenth In spite of these differencesf from a theoretical point of viewf both versions of the rule of law are ideologically united around a liberal normag tive view on politics and societyh In particug lar , the rule of law ensures the activities of the authorities both at the international and national levels in supportingf securing and developing other legal valuesh Against this backgroundf rule of law is an alternative to arbitrary exercise of power and presupposg

HV the subordination to universally accepted rules of conduct existed both at the internag tional and national levels >10, ph 366–367@. OK Possibility of the transposition of one version to another and vice versah In the majority of casesf the issue of transg position of the rule of law characteristics into another legal level is boiled down to the scientists’ negative responseh For instancef AK Watts believes there are at least two reag sons why direct transposition of the national rule of law namelyf its content to the interg national level is impossibleh cirstf the purg poses served the rule of law at the nationg DO level typicallyf the protection of human rights and the limitation of public authorig

ties’ power , significantly differ from those formed within the international legal spaceh pecondlyf it must be taken into account that the requirements of national rule of law are not identical with those requirements that exist at the international level >6, ph 16@.

Another prominent scholar HK Aust is of the opinion that it is not a constructive approach of scholarsf who develop the notion of interg national rule of law on the basis of a “comg mon denominator” of the various concepts of the rule of law existing in national legal systemsh Characteristic features of domestic rule of law variations cannot be fully borg rowed when constructing an international modelh At the same timef it is reasonably considered that within the international law framework unique concept of the rule of law should be clearly defined >11, ph 55@.

In this regardf some authors stress on a number of theoreticalgmethodological and practical issues related to the transposition of the three basic rule of law components into the international levelf namely pubg lic and stable law state power , limited by law the uniform and consistent applig cation of the lawh That is why the internag tional rule of law formula cannot be simply deduced from the concept of national rule of lawh These two versions of rule of law are developed separatelyf addressing varig ous political challenges and needsf and they are based on different principles of political power organization >10, ph 376@. Moreover , when transposing the rule of law to the ing ternational levelf its concept should cover

not only the process of adopting the lawf its application and enforcementf but also the material aspect of what this law constitutes by itself >8, ph 1 3@. As can be seen from the conducted above analysisf most scholars considering the posg sibility of transposition make an appeal to the structural differentiation of the rule of law components at this two levelsh Against this backgroundf AK Watts marked out the elements which are necessary for the rule of law principle to be employed in international communityh bssentiallyf among them are – completeness and certainty of the law to employ and respect the rule of law pring ciple in a certain community means that law is primarily capable to govern all situag

tions that might arise talking about “comg pleteness” of law means two premises it means that “every international situation is capable of being determined as a “matter of law” along with thisf there must be a comg prehensive mechanism for the application of already existed legal rules additionallyf this law enforcement mechanism should be accompanied by wellgknown and universalg ly recognized legal techniquesf other legal rules or transnational principles of law the formal requirement of application must be followed by fact that such law is applied to all members of the certain community – equality before the law in the internag tional context predominantly is manifested in sogcalled “principle of sovereign equality

of States” all States which come within the scope of a rule of law must be treated equally in the application of that rule to them withg out any exceptions in these circumstancesf

it is not asserted that there is only one way of application the law to all states without taking into consideration some specific feag tures of such states the main idea is that there should not be any discrimination beg tween States in their subjection to rules of law which in principle apply to them furtherg moref States should have equal standing in the formulation of rules of international lawf including the making of changes to the law – absence of arbitrary power there should be a wellgdefined set of limits of areg as in which international law allows a State to act at its pleasure without having to acg count for its actions internationally – effective application of the law with folg

lowing three aspects judicial settlement – there must be an ability of a State which finds itself with a legal difference with ang other State to have recourse to a judicial tribunal to have that differences resolved enforcement – the ability of the internag tional community to ensure that if a State refuses to comply with the lawf the law can nevertheless be enforces against it F applig cation in practice – regular application of the law by States in their daygtogday dealings with each other as part of regular pattern of their international relations >6, ph 27–33@.

PK Dialectical interrelations between two versions of the rule of law principleh This third aspect is usually analyzed through the approach according to which the parg ticular forms of the rule of law manifestation should be considered from the perspective of following three levels of legal relations between national and international legal org dersh The first level of relations envisages the least significant interconnection between national and international rule of lawf since the latter is defined precisely as a tool for regulating horizontal relations between states as what has been mentioned at the beginning of the current research . As the crucial goal of this principle is to create cong

ditions for limiting the national governments actions and protecting individuals inside the national legal systemf the regulation of reg lations with the national rule of law much differs from those relations that are intendg HG to regulate its international versionh They differ from each other by the subjects to which such powers are exercisedf by the nag ture of decisions based on the rule of law principle with broader legal and political contextsh From this perspectivef internag tional rule of law should not be designed as a set of means serving to protect sovereign statesf analogously to the national version aimed at protecting individuals’ rights and ensuring their autonomyh At the second levelf the linkages between

national and international rule of law is much stronger due to the fact that the interg national rule of law is used to regulate the exercise of power by the state and its bodg ies in relation to individuals and nonggovg ernmental organizationsh $ striking example is the international human rights lawf since a large number of international treaties and customary laws are intended to regulate relations related to ensuring the protection of human rights and freedoms by national governmentsh The functional interaction between two versions of the rule of law principle most fulg ly manifests itself at the third level of relag tionsf since international institutions review the powers exercised by the government

on the basis of standards that may differ materially from those that exist in nationg DO legislationh For examplef judicial human rights institutions in particular , the burog pean Court of Human Rights examine nag tional governments decision to ensure that they conform to the norms and standards on human rights and freedomsh In exceptiong DO casesf international criminal courts and tribunals the International Criminal Courtf the International Criminal 7 ribunal for the former vugoslaviaf etch have actually subg stitute government decisions by reversing them and taking further decisions in order to withdraw the indictments against these individualsh Under limited circumstancesf international political authorities may also

to a certain extent replace the competence of national governments for examplef the United Nations Security Council sanctions committees >2, ph 5–7@. Final remarks and recommendations of the current researchh The formalizag tion of the rule of law principle at the interg national level shows that existing scientific researches tend to illustrate one of two opg

posing trendsh The essence of the first is to operate the rule of law principle in the international legal arena as an indicator of the equal relationships between the states as the independent subjects of internag tional lawh The second trend continues the ideological origins of the first and consists

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of the observed phenomena on the basish At the same timef this contrast is revealed through the parametric differences beg tween the legal orders itself international and national . It seems necessary to expand existed directions of research with the methodog logical clarification on the variability of the targeted heteronomy of the rule of law principle at the international levelh This is primarily expressed in the dialectical interg action of the national version of the rule of law principle with its international anag logueh qhereforef the decisive methodologg ical basis for the further study will be the idea that the rule of law can be materialg ized not only as a principle of international

law or the constitutional basis of the funcg tioning of national legal systemsh The valg uegpurpose nature of this principle involves meaningful interpenetration of internationg DO and national law and order , convergence of national legal systemsh qhereforef the theoretical and legal study of the process and the results of such interpenetration necessarily lead to the urgent need to find the appropriate occurrence of the interacg tion between national legal systems with the internationalf taking into account releg vant trends in the field of globalization and integration processesh Aspects analyzed in the context of aug thor’s research have shown correlations between international and national rule of

law principles are strong enoughf especialg ly those related to the dialectical interrelag tionsh Interfaces between national and ing ternational rule of law are predominantly manifested in fact that debates regarding the effectiveness of international rule of law are related primarily to the concern of the international community to overcome the shortcomings in the rule of law functioning within a particular statef especially in the context of postgconflict situationsh It is significant thatf despite substantial difg ferencesf international and national rule of law variants interact quite closely with each other .

This interaction is reflected in followingh cirstf international law affects and often defines the content of national rule of lawh pecondlyf the effective application of the international law as one of the requirements of the rule of law at the international level directly depends on the national rule of lawh In this regardf there cannot be question about the efficiency or ing efficiency of international rule of lawf if it does not exist at all within the stateh Such dialectical interrelations are develg oped due to the fact that national practices regarding the rule of law principle constitute peculiar directions for modification of this principle within the framework of the ing ternational communityh pubsequentlyf such

modification processes shape the priority trends in the reformation of international law system itselff its readiness to meet curg rent global society challengesh