Rule of Law Without International Courts

Abstract

In commenting on the roles of Elihu Root and James Brown Scott in the founding of the Permanent Court of International Justice (PCIJ), former International Court of Justice (ICJ) President Abdulqawi Yusuf stated “there can be no [international] rule of law without a court to apply it.” The American Society of International Law (ASIL)’s International Courts and Tribunals Interest Group recently hosted a symposium event to probe this statement. Without rehashing the voluminous scholarship on the international rule of law, this introduction to the symposium will explore specifically whether a court such as the ICJ or the PCIJ is a prerequisite to an international rule of law. The international court system as currently formulated plainly does not meet the requirements for the rule of law as often defined for domestic systems. Unless we are prepared to accept that there is no international rule of law, or only a partial or developing rule of law, this means that there must be an alternative definition of “rule of law” for international relations, which does not consider international courts as a prerequisite to rule of law in all circumstances, and highlights other enforcement mechanisms and arbitration. Accepting this point does not diminish the important role of international courts in the application of international law but does serve to emphasize how other mechanisms fill important rule-of-law gaps left by international courts. Each of the articles that follow this introduction addresses these mechanisms – including administrative bodies, sanctions, investigative mechanisms, and ad hoc arbitration – and how each mechanism interacts with the international court system.