The March Hare

Rule of law and Europe

When Hugo de Groot and John Selden engaged in their famous disputation over the freedom / dominion of the seas in the early seventeenth century they were laying the foundation for a new science of international law. Before then, before the ‘modern’ period of history, there were indeed rules governing some relations between princes and on the conduct of war (status of heralds on the battlefield, rights to sack cities which had resisted siege).

            But when the age of princes gave way to the age of States conduct became governed by bureaucracy rather than personal relations between monarchs. In that context a more systematic regulation was needed.

            The originality of Grotius was to create a basic legal framework for regulating the interactions of these new States more generally. And that developed over the next three centuries into a far-reaching legal system which culminated in the great series of international legal treaties signed at The Hague around the turn of the 19-20th centuries.

            Except that it was not really law at all. It could not be enforced. Compliance with treaties or even principles of customary international law depended in the end on self-interest and mutuality. If a State was powerful enough or prepared to take the consequences in non-cooperation it could break the rules, break treaties, interfere with other States’ “rights”.

            Two techniques emerged in the 19th and 20th centuries to deal with this. One was the creation of international organisations for specific or general purposes. These were developed out of multilateral alliances, but with organisation and, crucially, a permanent secretariat to provide a vested interest in continuity. But basically the only sanction for breach of the organisation’s rules was expulsion. If the organisation was more or less universal in character, the non-cooperation following expulsion (or withdrawal) could be a significant disincentive.  Consequently discipline by this means depended upon the importance of the organisation. Membership of the UN is more valuable diplomatically than that of the WHO or the WTO.

            Nevertheless the combination of a wide range of international organisations with a massive array of vital multilateral treaties in both public and private law spheres is gradually binding States into a web of regulation and norms that it is difficult for them to avoid. But ultimately they can go it alone if they want to hard enough.

            So along comes the other wing of inter-State discipline: enforcement.

            Originally the settlement of disputes was by violence (war), diplomacy or latterly arbitration. But apart from war, these techniques all depended ultimately on voluntary agreement.

            In spite of the spread of international courts in the 20th century, beginning with the development from the 1899 Permanent Court of Arbitration (which was not a court) and the Permanent Court of International Justice (which was) in 1920, the voluntary principle inherent in international law remained.

            Under the powerful influence of the concept of sovereignty, inalienably linked to the concept of the nation state, states continued to maintain their right to independent action, whether or not they had agreed to limit the exercise of that right in certain circumstances. The whole apparatus of treaties and dispute settlement procedures was in the end a giant confidence trick governed by the self-interest of the states.

            The originality of the European Union was to add a new dimension to this mix. The initial instinct was to create a classic international organisation (in fact, two): the Organisation for European Economic Cooperation (OEEC) which was formed to organise the distribution of the Marshall Plan money; and the Council of Europe which aimed to express the solidarity of the European states in moving forward after the devastation of World War II.

            These were both imbued with the ethos and principles of standard international law. They provided a permanent forum for the member states to join together to discuss and decide upon common actions. But the voluntary principle remained. The innovation came when a third international organisation was formed in Europe, by merely six European states. And not only was its membership small, so was its coverage – just two industrial sectors.

            The European Coal and Steel Community did not at first appear revolutionary. True, it had a court to interpret the founding treaty, true it had an administrative structure. But crucially its secretariat had enforcement powers not only over errant member states but also over private companies and so could enforce the decisions of the court and also enforce its own decisions, subject to their annulment by the court. This was new. An international court that dealt with minute detail, just like ordinary courts.

            The other innovation was the power of the Member States to legislate, to create laws that were not treaties, as under international law, but were directly binding upon private parties (as well as themselves). At first this was a vestigial power but after the ECSC morphed into the European Economic Community it became a major tool of the organisation.

            So, although the form remained that of a typical international organisation, its working had moved far beyond that of classic international law. Its Member States remained sovereign entities internationally and yet they shared part of that sovereignty to the organisation which also, in spite of early resistance by the USSR, itself acquired a new form of international sovereignty.

            The end result was that out of the interplay of all these elements, stirred up by the court and the acceptance by the Member States of the court’s rulings, the sovereign member states limited their freedom of action so as to accord with the law they had accepted in common and as pronounced by a court that contained lawyers trained in the varied domestic legal systems of all those member states.

            The paradox of full sovereignty and subordination to the rule of law had been solved. The rule of law, which had hitherto been applicable to citizens and administrations within states, now applied between states themselves.

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