Ad-hocism and the Rule of Law

Abstract

The frequent use of enforcement action of a unilateral or multilateral character to protect human rights as well as a growing concern over the detrimental effects of UN sanctions on civilian populations attest, albeit from different perspectives, to the importance of human rights values in the international community. In fact, a process of constitutionalization seems to be taking place in international law. The anomaly is that it materializes in bits and pieces, mainly through the emergence and subsequent consolidation of normative precepts perceived as fundamental. By providing ad hoc solutions, not grounded on any discernible principle of general application, the Security Council has failed to bring this process into an institutionalized framework. The prevailing 'ad-hocism' permeating its action prevents the development and subsequent enforcement of consistent patterns of normative standards and policies and makes it difficult to exercise scrutiny over the conduct of international actors. Eventually, the lack of consistency, predictability and fairness not only undermines its credibility, but also causes one to wonder whether the Security Council can be of any guidance in defining the contours of an international legal order based on respect for the rule of law and the consistent enforcement of shared values and common interests. The question of human rights protection and monitoring in the context of this symposium compels us to think about the evolving character of the legal order of the international community at a time of transition. In this perspective, I shall put forward some submissions — far short of a synthesis I am afraid — with a view to reconciling the apparently different views presented by Aznar-Gomez and Bennoune in their contributions. The main theme underlying Aznar-Gomez's paper is a criticism of what he defines as the 'deregulation process' occurring in the international community. In a slightly different connotation to that of its original proponents, 1 Aznar-Gomez takes the expression to mean the 'deliberate and gradual disappearance of the rule of law' and 'its substitution with the rule of power' based on a case-by-case approach to international law. Instances of this are traced to the pragmatism with which the