International Law at a Crossroad:

The International Rule of Law: An Ideal and the Reality

Prof. Dr. Hong ZHAO

Member, Chair, Appellate Body of the WTO

The International Law Forum

Munich Security Conference

Literaturhaus in Munich (Salvatorplatz 1, 80333 Munich)

February 13, 2020

Munich, Germany

Winston Churchill — 'The farther back you can look, the farther forward you are likely to see.'

The history of human beings was perhaps of more than 2 million years on the 4 to 5 billion years planet Earth. The written record of Human civilization was probably of only a few thousand years. From living in a cave to a world of computers and mobile phones, the achievements of human civilization could not be regarded as less splendid or glorious during this rather short period of time in the long river of human history. For some, the skyscrapers that change the landscape and skylines of metropolitan cities, the manned space station, the artificial intelligence and the cloud computing are probably more prominent among these achievements; for others, the invisible social structures and institutional frameworks that underpin the human activities  leading to these material achievements are even more fundamental to human beings. Nobody can deny that human beings, after all, are social animals. Obviously, all the current civilizations have been achieved through social, organizational co-ordinations and collaborations.

Therefore, the rules reflecting common values and beliefs of human beings that underpin these institutional frameworks and social structures facilitating the co-ordinations and collaborations are highly important and treasurable for all of us. These rules are known as domestic law at national level and international law in the international regime. In a nutshell, the "rule of law" is the concept lying behind all these rules and practices in both national and international domains. It has become an ideal as well as a key common value underpin the operation of modern society of mankind.

However, after a remarkable implementation and practice in many fields of the international affairs, international law seems to have come to a critical juncture. Whither the next step? Are we moving towards a jungle world or continue our effort to go along with a world of rule of law? Will the multilateral framework and rules stick to or be sidelined by the rising unilateral actions in international trade and investment? Shall the world continue to be open to, and interactive with, each other through further collaboration, or are we turning to an era of deglobalization? All these are questions, ringing not only in people's minds but also on top of the headlines of daily newspapers.

Perhaps this is the very reason that for the first time in all the summits of Munich Security Conferences for more than half a century, that organizers sponsor this International Law Forum. It is a great honor for me to be invited and present at this Forum. It would also be my pleasure if I could be of some help alleviating the doubts and rebuilding the confidences among the audiences on the rule of law in the international affairs. That is the reason I fly from Geneva to Munich. By the way, Munich is the city impressed me deeply for its beauty and serenity. I had visited it several times while I worked with the Joint Sino-German Legal program sponsored by GTZ (Die Deutsche Gesellschaft für Technische Zusammenarbeit) and MOFCOM as the coordinator and co-trainer from the Chinese side. The Chinese legal society appreciated that program very much, they are deeply grateful for the help and assistance provided by GTZ on behalf of Germany. Let me take this opportunity to thank the organizer for inviting me and for all their efforts to make this Forum possible today. I wish it a great success.

The topic of my lecture is "International law at a crossroad", subtitled as "International rule of law: an ideal and the reality"

I intend to address three issues. First, the origin and evolution of the rule of law; Second, does international rule of law exist? Third, why should we uphold international rule of law? Lastly, if time permits, as the only remaining Member as well as the Chairperson of the Appellate Body of the World Trade Organization, I will say a few words on the dispute settlement mechanism of the WTO.

First: The origin and evolution of the rule of law.

Academia seemed to accept the view that Aristotle was the first scholar to put forward the idea of the rule of law. Unlike Plato, who advocated the rule of philosopher kings that would be better at respecting established laws than others, Aristotle posed the question of "whether it was better to be ruled by the best man or the best law" in his well-known work Politics,  and opined that the highest officials should not be allowed to wield power, rather, "they should be appointed to be only guardians and servants of the laws." Clearly, both the two ancient Greek philosophers believed in the significance of the function of the law. Plato even stressed that "if the law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that gods shower on the State". Unlike conventional studies, in my view, Aristotle's and Plato's differences on the idea of the rule of law may be more nuanced than divergent. Interestingly, during the 3rd century BC of China, members of the school of legalism argued for using law as a tool of governance. Some believed that legalism purported the "rule by law" as opposed to the "rule of law", because that punishment for aristocrats and the emperor by "laws" was unequal to those for the commons. In contrast, during the same period of time in China, Daoism plainly rejected to rely upon harsh rules to govern a state, rather they favored to follow a natural law that everyone would be subject to. Meanwhile, Confucianism advocated a moral or ethical order in the state, clan and even family and respected the rule of morality (highest moral icon, "圣人Shengren",) as the best way to govern a State. Therefore, for more than 2000 years, in the east and the west, the better way to govern a state has become a forever topic in politics. Numerous philosophers, scholars and Chief Justices proposed various definitions of the rule of law of their own which reflected the evolution of the idea of the rule of law. Reviewing them is inspiring, particularly, in the current situation. For example, in 1215, King John of England signed the Magna Carta (i.e. the Great Charter) which made him subject to a contract that he committed to recognize and ensure that the life, liberty and property of the free subjects of the King who supported him could not be taken away without lawful judgements. Article 39 of the Great Charter could be regarded as the first sort of social contract that John Locke proposed later. According to John Locke, there existed a social contract between the sovereign and its subjects, whereas the sovereign was also a party to and was bound by the laws made under it. According to him, the supreme ruler was "bound to govern by established standing laws, promulgated and known to the people" (See The Second Treatise of Government, 1689). This social contract theory was epoch breaking, as the relationship between the sovereign State and its individual subjects had been clearly defined as a contractual one and Government was made accountable to individual citizens through the rationale provided by a political theory.

This political idea of enlightenment was later reflected in the Constitutions of several States and Monarchies across the Atlantic, including Britain, France and United States of America. Now most countries in the world have incorporated the rule of law in their Constitutions. This political heritage has been widely proliferated throughout the world.

Though in its origin, the rule of law concept meant to bind the almighty kings or sovereigns, as time went by, everyone, “individuals, legal persons and government" shall all submit to, obey and be regulated by law, and not arbitrary action by any others. Lately, in the first decade of 21st century, the Secretary General of the United Nation has described the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards". He also emphasizes, the rule of law requires "the adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” (Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies (S/2004/616).

From the above, we can see that the historical tradition in political theory and the key features of rule of law that evolved and developed during the past two thousand years have been carried on and firmly established in modern society and has become a core value in political governance as well as daily life of human beings in individual countries on this planet.

Second, Does International Rule of Law Exist?

In my view, this question goes to the fundamentals of the role and function, if any, that international law can play in international relations. From the treaty between the rulers of Lagash and Umma in Ancient Mesopotamia ending the wars and resuming a friendly relationship around 2100 BC which represented international law practice in its early form, to the landmark Peace Treaty of Westphalia in 1648 that laid down the fundamental principles of international law of modern times, and to the treaties establishing United Nation and its related and subsidiary organizations after the Second World War, the practice of international law has been gaining a more and more pivotal role in many fields of international relations. With the speed up of globalization since the 1990s and the first decade of 21st century, international law had achieved momentum and made tremendous progress in almost every field of human activities. The emergence of hundreds of treaties and countless international legal documents helped establish the multilateral and regional legal frameworks to maintain the Peace and Collaboration among nation states. Therefore, in general, international law has become an essential pillar of the present international order.

However, if you look at the specifics of the essential features of the rule of law, you might come to more nuanced conclusions. When focusing on the procedural perspective of the principles of the rule of law, such as"participation in rule-making, due process and procedural and legal transparency", you will be probably more inclined to agree that international rule of law exists among its participants whereas there is an international treaty between them. While if you insist on "the supremacy of law, equality before the law, accountability to the law, legal certainty, avoidance of arbitrariness, fairness and justice in the application of the law" as the core features of international rule of law, you may hesitate whether rule of international law exists and might say it just depends. People may have different experiences in their mind. For example, whether the super-power will abide by the treaty rules it accedes.

As to how to assess the current situation of the rule of international law, I found the words by Professor James Leslie Brierly, a distinguished British international law scholar in his speech nearly a century ago much relevant. At his Inaugural Lecture at Oxford University in 1924, Professor Brierly stated  "whether fairly or not, the world regards international law today as in need of rehabilitation; and even those who have a confident belief in its future will probably concede that the comparatively small part that it plays in the sphere of international relations as a whole is disappointing." I guess some of you may feel somehow similar disappointment with the role that international law currently plays in international relations. No need to mention the list of the Paris Accord on Climate Change, the Iranian Nuclear Agreement, etc.…which can be added further based on the daily news headlines.

Though the American scholar Prof. Louis Henkin acclaimed “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time” in his book 'How Nations Behave', the rise of unilateral actions by some states, makes people worry that hundreds and thousands of years of international rule of law tradition has become increasingly broken and fragmented. What would be the future?