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.