The rule of law and accountability: exploring trajectories for democratizing governance of global public goods and global commons

Abstract

Defining the practice of the ‘rule of international law’ as a global public good is, with some exceptions, surprisingly scarce in the literature. Yet, an effective ‘rule of law’ at the international level may be considered a ‘meta’ or ‘core’ global public good, and as an equally fundamental part of global society, as it currently is in domestic, democratic societies. Furthermore, international rule of law is not only a key global public good in itself; it would also support both the provision of ‘classical’ global public goods and the preservation/management of global commons, and the very process of achieving it would be a common good. However, there is something disturbing about a governance system in which core actors (i.e., states) on the one hand can year after year adopt a range of new international norms and goals encased in those norms (e.g., binding multilateral treaties, as well as ‘soft law’ statements), in what might be considered as a manifestation of unity of thought and purpose in global undertakings; yet on the other hand, year after year, allow those core actors to escape (in large part) any formal accountability mechanisms for what they have not done to implement those norms and achieve those goals. Such a circumstance is antithetical to well-accepted governance norms which link legitimate governmental authority, normally associated with democratic forms of government, with the operation of the rule of law and the accountability of subjects to the law. This chapter will first elaborate definitions, in part based on statements made in United Nations’ fora on the subject, to provide an anatomy of components of the rule of (international) law, including perspectives on conceiving of the rule of law as a core global public good. It will then discuss two suggested accountability trajectories associated with building a meaningful global rule of law – ‘input’ and ‘output’ accountability – between states and other relevant actors, identifying some of the associated challenges and proposing various pathways to address them. This chapters suggests that strengthening such accountability trajectories would signal a further ‘democratization’ of the international order.