In more recent years, the idea of the rule of law has become relevant at the international level and especially in the relationship between states. In his report of 23 August 2004 to the Security Council, the then Secretary-General, Kofi Annan, referred to the rule of law as being at the very heart of the organization’s mission. He said:

It refers to 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. It requires, as well, measures to ensure adherence to the principles 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. (My emphasis).

The number of international treaties has proliferated in recent years and so have the establishment of international and regional courts and tribunals to help ensure obedience of States to their provisions. Today there are in excess of one hundred such courts and tribunals and over three hundred international judges have been appointed to serve on their benches. It is a fact of international life that absent any means for the enforcement of the decisions of those courts and tribunals, obedience to them has to be found in the self-interest of States. Fortunately self-interest more often than not dictates adherence rather than the converse. The overwhelming majority of decisions by international and regional courts are respected and implemented.

It must be recognized that States will flout decisions of international courts when their self-interest so dictates and there is no shortage of illustrations of that. The United States refused to comply with the decision of the International Court of Justice in the Nicaragua case and Sudan and Kenya have refused to respect orders made by the International Criminal Court. But those are the exceptions and not the rule.

The rule of law will be less respected and less credible at the international level if leading nations flout it. That is a tremendous responsibility for the nation that with justification regards itself to be the leader of the democratic world, the United States. If it does not lead by example, what can one expect from autocratic nations?

It is much to the credit of the United States that there was an impressive investigation into the use of torture during the Administration of President George. W. Bush, and that its disturbing findings have been made public. However, this writer is disappointed by the absence of any meaningful follow-up by the Obama Administration. Not only is the United States bound by the 1984 United Nations Torture Convention. It is also bound by the provisions of domestic law that mirror those contained in the Convention. Those laws not only absolutely forbid the use of torture, they also oblige those who violate the prohibition to be prosecuted. It is the absence of any investigation that is disappointing and calculated to give an excuse for similar unfortunate conduct to the leaders of other nations. I am disappointed that civil society in the United States has failed to press for appropriate investigations pursuant to the Senate Report.

There are more democratic nations in the world today than ever before. Some of them are struggling to maintain their openness and the implementation of the rule of law in the face of growing terrorism that is operating more than ever across borders. The challenge is to maintain democratic institutions and principles in the face of that threat and the fears that come with it. The challenge is not to reward those who use bloody terror by giving up or diluting those principles. It is this challenge that should be kept in mind when we celebrate the 800th anniversary of Magna Carta.