States need the rule of law to survive

This article describes the role of the rule of law in the relations of states, in the preservation of their rights and interests, in resolving conflicts and disputes and in ensuring international peace and security. In writing the article, the author sets such tasks as determining the role of the rule of law in international law, studying the sources of international law, considering and analyzing the relationship of states in legal, political, economic and social aspects in recent times, determining the appropriate use and preservation of the rule of law with respect of actions and the relationship of states. The need of states for the appropriate use and preservation of the rule of law emphasizes the relevance of the chosen topic. Scientific work contributes to the preservation of the factors ensuring the survivance of states in the international arena.

Keywords: the rule of law, state, international law, sources of law, global problem, international organizations.

First of all, it’s important to keep on mind that this study draws on research conducted by the rule of law. The international community emphasized in its declarations and resolutions the need for a clear legal basis for the integration of the rule of law in all aspects of life at international level. To my mind the rule of law represents fulfillment of necessary condition for law to be able to functioning as mechanism for protection of interests; guarantee and support for international and national stability; the replacement of settlement of disputes by force by the settlement of them by peaceful means; intermedium for cooperation. Commitment to the rule of law is among the core responsibilities of the states at the national and international levels. I’d like to emphasize that on logical grounds, there is no compelling reason to argue that states are able to survive without the rule of law. In that respect for the rule of law generates an enabling environment for, frankly speaking, states to survive, which means ‘to continue to live or exist, especially after coming close to dying or being destroyed or after being in a difficult or threatening situation’ [1]. While the respect for the rule of law traditionally has been recognized as a requirement addressed to the domestic legal system, the relevance of the principle is increasingly also as piece of international law. ‘Observance of the rule of law is quite as important on the international plane as on the national, perhaps even more so’ [2]. In his report the Secretary-General to the Security Council provides following that serves as lend support to my statement:

“It refers to a principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to the law that are publicly promulgated, equally enforced and independently adjudicated and which are consistent with international norms and standards. It requires, as well, measures to ensure 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” [2, p. 110]. In their Millennium Declaration the member states of the United Nations resolved to ‘strengthen respect for the rule of law in international as in national affairs and, in particular, to ensure compliance by Member states with the decisions of the International Court of Justice, in compliance with the Charter of the United Nations, in cases to which they are parties’ [4].

Foremost, states protect their interests in right order due to the rule of law.Interest defines the sets of preferences. In my opinion, state interest relates to the preferences of a nation. The concept of national interest is significant for the international relations as states are key actors it this arena. A closer look at the concept indicates that state preserves and protects its values against the interests of its competitors. The foreign policy of each nation is formulated on the framework of its national interest and it is always at work for securing its values and goals. It is a universally accepted right of each state to secure its national interests. In this way it is significant for us to know the meaning of national interest. “The meaning of national interest is survival — the protection of physical, political and cultural identity against encroachments by other nation-states” — as Morgenthau provides [5]. International law reserves legal personality exclusively to states [6]. Other subjects of international law have limited legal capacity. This represents huge opportunities and conditions for states to protect their interests. ‘Rules made by states for states is the basis of international law. International law governs states and their relationships with one another’ [7] Acquirement of legal personality provides privileges and responsibilities. To illustrate this point we should consider five elements of legal capacity: a) capacity to create norms of international law, such as treaty and custom. In adoption of custom Article 38 of the ICJ Statute refers to «international custom» as a source of international law, specifically requiring the two elements, as state practice and ‘opinio juries’ [8, art. 38]. Due to principle of consent states can object custom until recognition by community of states. With treaties that is regulated by Vienna Convention on the Law of Treaties is the same — decisive criteria to determine the existence of a treaty is concept of “consent”. The consensus view seems to be that treaty is one of the main instruments that helps states to protect their interest. The clear example of what I said is the United Nations Charter which prevails over all other treaty obligations. Principles shown in Article 2 of the Charter represent ideal mechanism for fulfillment of state’s interest [9, art. 2]. The principle of sovereign equality of States means that all States enjoy sovereign equality. ‘They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature. In particular, sovereign equality includes the following elements, such as judicial equality; rights to inherit in full sovereignty; duty to respect the personality of other States; the territorial integrity and political independence; right freely to choose and develop its political, social, economic and cultural systems; duty to comply fully and in good faith with its international obligations and to live in peace with other States.’ [10] ‘As well all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’ [9] b) ‘Jus standi’ that means capacity to claim against another state. The case is to be resolved in ICJ if the court has jurisdiction. Otherwise cases can be resolved in the Permanent Court of Arbitration and in other courts. c) Capacity to be responsible in court before another state. d) Capacity to get privileges: from jurisdiction. The glaring example is the case “Germany vs. Italy”, concerning the extent of state immunity. The court found that Italy was wrong to ignore German immunity, because jus cogens which is material norm can’t make exception in procedural norms (state’s immunity). e) Jus legalitus, which means capacity to have diplomatic relations. Above all, states by providing for themselves such privileges and responsibilities based on the rule of law provide a full protection of their interest.

National interest can be defined in various ways. For an American historian Charles Bear territory and commerce were key factors of national interest. Some scholars focus on the concept of independence from interventions in internal and external affairs. To illustrate this point it’s better to give an example when states were able to protect its interests depending on the extent to which they observed the rule of law. It was Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda). As it’s pointed above the rule of law refers to principle of governance in which states are accountable to laws that are publicly promulgated and equally enforced. As well it requires equality before the law, in the legal matter; fairness in the application of the law, which means that court has to trial fairly and explain each element of its decision; procedural and legal transparency, which can be seen in fact that the voting on each of the central judgments against Uganda was either unanimous or sixteen to one. With reference to International Commission of Jurists I want to add that the rule of law implies an independent judiciary, and the primary judicial branch of the United Nations grants it [3]. ‘The Court thus held that Uganda had violated the sovereignty and territorial integrity of the DRC, that Uganda’s actions constituted an interference in the internal affairs of the DRC, and that the unlawful military intervention was of such a magnitude and duration that the court considers it to be a grave violation of the prohibition on the use of force expressed in Art. 2 paragraph 4 of the Charter. The Court rejected Uganda’s claim of self-defense under Article 51 of the UN Charter. The Court therefore rejected Uganda’s claim without reaching the question whether Uganda’s use of force met the necessity and proportionality requirements of self-defense. The Court observed, however, that the taking of airports and towns many hundreds of kilometers outside Uganda’s border would not seem proportionate to the series of trans-border attacks it claimed had given rise to the right of self-defense, nor to be necessary to that end.’ [11] To make brief conclusion on this, Uganda’s claim wasn’t satisfied by reason non-compliance with the rule of law. As we know, all of these are general principle of international law, for which there is evidence of the existence of universal practice and the mandatory application by the international community. The Court ordered Uganda to pay reparations to the DRC. Since the rule of law requires fair trial and legal equality Congo, in its turn, because of violation of the Vienna Convention on Diplomatic Relations of 1961 was liable for its illegal activity. Uganda’s counter-claim, as a rule, by virtue of the rule of law was satisfied. Therefore any protection activity, be it political, physical or through the establishment of a protective environment, must be based on the rule of law and aimed to give the applicable laws practical significance in difficult circumstances.

The rule of law is the main instrument of guarantee and support for international and national stability. There is no doubt in my mind that the concept of “the rule of law” is the main instrument to set stability in international sphere. Its application describes an environment in which states respect the rights of others and perform its obligations, offering greater stability to the international community as a whole. From the broader point of view, we shall define stability as the probability that the system retains all of its essential characteristics; that no single nation become dominant; that its members continue to survive; and that large scale-war doesn’t occur [12]. What’s more “the rule of law’s” one of the main principles provides: ‘A system of self-government in which all persons, including the government, are accountable under the law’ [13]. This means that the law must have characteristics of generality and equality. Another key thing to remember is that little discretion of state in both national and international arena shows high degree of adherence to the rule of law. With this in mind, I’d like to point out that international stability depends on the degree of adherence to the rule of law of each state. To understand this point it’s better to consider the Worldwide Governance Indicators’ project that has elaborated total measurements for the rule of law in more than 200 countries. In the fact in the UK, US, Germany, France are 90–100^thpercentile; in India, China, Thailand, South Africa, Oman are 50–75^th percentile; in Sudan, Angola, Chad, Republic of Congo are 0–10^th percentile of abidance. The data appears to suggest that in states where can be seen high degree of adherence to the rule of law reigns legal stability. If there is low degree of adherence, respectively, weak legal stability. For instance, in the United Kingdom the rule of law is a long-standing principle of the way the country is governed, dating from Magna Carta in 1215 and the Bill of Rights 1689 [14]. ‘In India the longest constitutional text in the history of the world has governed that country since 1950. The saying of Ronald A. Brand reaffirms the above ‘United States and the European Union fund programs designed to develop the rule of law and they spend significant expenditures in this area’ [19]. Although the Constitution of India may have been intended to provide details that would limit the opportunity for judicial discretion, the more text there is in a constitution the greater opportunity the judiciary may have to exercise judicial review. Indian journalist Harish Khare provides that the rule of law or rather the Constitution is in danger of being supplanted by the rule of judges.’ [15] A few years ago, ordinary Chinese would have suffered in silence, afraid to raise their voices. Today, many are taking their grievances to court. A new breed of Chinese public interest lawyer is leading the push to establish real rule of law [16]. In Sudan, that was already underdeveloped and marginalized, the rule of law very close to be replaced by rule of force. In today’s day, UN is promoting the rule of law and access to justice in Sudan [17]. The data generated by HiiL ensures transparent monitoring of observance of the rule of law. ‘Hiil defined rule of law as a multi-dimensional concept consisting of eight facets: 1) accountability to the law; 2)access to information; 3)independent judiciary; 4)respect for fundamental rights; 6)effective implementation of laws; 7) acces to justice; 8) absence of corruption.’ [18] ‘Compliance with rule of law standards ensures combating high-level corruption and the independence of the judiciary. The conclusion is that the rule of law is not only a theoretical concept with different meanings at the national level, but that there is also an EU rule of law acquis, which is a specific part of the EU acquis.’ [21] All things considered, I firmly believe that strengthening international stability depends on what degree the states have succeed to respect and follow up the implementation of the relevant rule of law's legal frameworks. International stability, in its turn, key factor of state’s surviving.

The rule of law requires peaceful settlement of disputes.Peaceful settlement of disputes is one of the fundamental principles of a peremptory character. I’d like to emphasize once more that the rule of law requires implementation of this principle in good faith. It is formulated as such in the UN Charter: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” [9] Similarly Article 33 of the UN Charter is critical for the prevention of conflict and the peaceful settlement of disputes: «The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice» [9, art. 33]. ‘There are the variety of instruments for peaceful settlement, including negotiation, conciliation and commissions of inquiry.’ [20] The idea of the rule of law as valuable to international peace and security as key to coordinating peace operations, or peace-building activities in particular, in post-conflict regions. Ultimate responsibility for taking effective and prompt activity for the maintenance of international peace and security was given to the Security Council. It provides in Article 39 of UN Charter that ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations, or decide what measures shall be taken to maintain or restore international peace and security.’ [9, art. 39] Article 41 covers measures decided only by the Security Council which don’t embrace the use of armed force [9, art. 41]. Security Council calls upon the parties to a dispute to settle it by peaceful means and recommends methods of adjustment or terms of settlement [22]. In such way unilateral resort to war is replaced by collective decision-making in the Security Council on behalf of all member states [2, p. 112]. Establishing rule of law institutions is vital to ensuring security and the necessary stability for peacebuilding to take root. As it’s pointed above negotiation represents method of peaceful settlement. ‘Referring to negotiation, the International Court of Justice remarked that «there is no need to insist upon the fundamental character of this method of settlement». It observed in this connection that, unlike other means of settlement, negotiation which leads to «the direct and friendly settlement of disputes between parties».’ [23] Glaring example of what said is resolve of one of the world's most serious crises of Iran, which served 12 years of arduous negotiations aimed at nuclear non-proliferation. Formal negotiations on this issue began with the adoption of the Joint Plan of Action, which represents interim agreement signed in 2013. From this time until 2015 Iran and the P5+1countries engaged in negotiations. Permanent Court in the following words: «Before a dispute can be made the subject of an action at law, its subject matter should have been clearly defined by diplomatic negotiations» [23]. So, after successful negotiations dispute became a subject of law. Agreed on an Iran nuclear deal framework for the final agreement parties signed the plan known as the Joint Comprehensive Plan of Action on July 14, 2015 and started implementing it on January 16, 2016.As provided for in the JCPOA, the agreement was formally endorsed by the UN Security Council, incorporating it into international law [24]. Under the agreement, Iran undertook to put some limitations on its nuclear program in exchange for the disposal of nuclear-related sanctions inflicted against Tehran. In resolution 2231 was established plan and schedule for performance of provisions and measures for deviation of parties from performance of obligations. United Nations Secretary General Antonio Guterres has hailed the nuclear agreement, saying it plays an important role in promoting international peace and security. On the same day Security Council approval the JCPOA was formally approved by the European Union, which provides accordance of the agreement with the principles that requires the rule of law.

In any case, without the rule of law states can’t cooperate at all.Mankind needs in such thing as society to be able to live in their environment. The same is true in the international sphere. With this in mind, it’s an obvious fact that states are able to exist only due to cooperation governed by the rule of law. Scholars have defined cooperation as ‘when actors adjust their manners to the actual or anticipated preferences of others, through a process of policy coordination’ [25]. The rule of law is the platform for communities of opportunity and equity and is essential to addressing the world’s most persistent and harmful ills [28]. Resolutions of General Assembly 62/70 provides that ‘reaffirming further the need for universal adherence to and implementation of the rule of law at both national and international levels and its solemn commitment to an international order based on the rule of law, which, together with the principles of justice, is essential for peaceful coexistence and cooperation among states.’ [10] With the reference to the Lord Bingham’s phrase I want support my idea: “If the daunting challenges now facing the world are to be overcome, it must be in important part through the medium of rules, internationally agreed, internationally implemented and, if necessary, internationally enforced. That is what the rule of law requires in the international order.” [2, p. 129] To give an illustration of what I mean, let’s look at the issue of climate change. Climate change is one of the most actual topics that pose a great threat to states, equally as well to the worldwide community as whole. Climate change more severe in the Arctic than in most of the rest of the world. The feedbacks from the Arctic are increasing global sea level, they are predicted to change global climate and precipitation patterns [26]. Such problems can be resolved only by cooperation of states and only based on the rule of law. Also seasonal sea ice melting could help unlock untapped energy reserves and establish strategic and economically valuable waterways near the top of the globe [27]. Natural resources, minerals are the most important wealth of any state and states usually make everything to get or just to preserve them. They can be both matter of dispute and reason for peaceful cooperation. In areas such as these the interests of the states don’t jump together. Actually, each state thinks of its own benefit and tries to carry out profitable activity without any restrictive environmental control. However, consequence of such activities leads to beginning of collapse of mankind. The old history made on several occasions states aware of the issue. All bordering countries certainly view the region as significant, and realize that such actions will not lead to good. At the moment states have taken measures to establish mutually beneficial partnership governed by the rule of law. An effective legal order is an essential condition for economic growth and development. Cooperation between countries where the rule of law is weak runs the risk of sliding into conflicts and instability. Thereby by interacting states are able to resolve global issue and get economic profit. Likewise successful solution of problem contributes to strengthen political and economic ties. Awareness that the Arctic may be the next crisis zone for the hundreds of communities affected by climate change made two feuding for decades states cooperate. To manage such difficult relation between Russia and the West the rule of law sets the ideal form of diplomacy, competence in government, and an improved understanding of one another’s culture and politics. For instance, ‘The Environmental Protection Agency of US and the Russian Ministry of Natural Resources and Environment are working together to reduce black carbon. American and Russian officials are testing search-and-rescue preparedness in the Arctic Coast Guard Forum. And science diplomacy allows both countries better understand the challenges of warmer winters.’ [29] All science research and other interference with the marine ecosystem regulated by the rule of law to prevent catastrophes which can be new harm for states itself. What I mean is the legal basis that encompassing principles: accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty. On these grounds, it found a form in: The law of the sea, United Nations Convention on Law of the Sea, London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, United Nations Framework Convention on Climate Change. Moreover all boarder states are making every effort to resolve the problem. The Arctic Coast Guard Forum, established last fall, brings together coast guard leadership from Canada, Denmark, Finland, Iceland, Norway, Sweden, the Russian Federation and the United States to coordinate on operational issues related to increasing commercial shipping, cruise lines, scientific research, oil exploration, fishing and other human activity as the Arctic Circle waters open up [29]

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