The International Rule of Law: Scope, Subjects, Requirements

July 6, 2021

By Denise Wohlwend

Over the past decades, the topic of the international rule of law (‘IROL’) has received considerable attention in the practice and scholarship of international law. Most prominently, in the 2005 World Summit Outcome, the United Nations member states recognized the rule of law (‘ROL’) as one of the organization’s ‘core values and principles’, as well as recognizing ‘the need for universal adherence to and implementation of the rule of law at both the national and international levels’.[1] Since 2006, ‘The rule of law at the national and international levels’ has been a standing item on the agenda of the United Nations General Assembly, which has adopted annual resolutions reaffirming the aforementioned commitment.[2] In addition, many academic publications, conferences, research projects and even a journal[3] have been dedicated to the IROL.

Yet, despite the great interest in and the multiplicity of works on the IROL, the theoretical issues of the general possibility and desirability of the IROL remain underexplored. The book ‘The International Rule of Law: Scope, Subjects, Requirements’ responds to this deficit in the contemporary international legal scholarship on the IROL. It examines in an in-depth manner whether, and if so how and to what degree, the current international legal order can and should conform to and develop the moral-legal principle of the ROL. Moreover, incorporating both international and domestic law, the book argues for a transition in the way the IROL is theorized towards an approach that understands the IROL as beneficial to individuals and as closely linked to the domestic rule of law (‘DROL’).

The book focuses on the three fundamental issues of the scope, subjects and requirements of the IROL. First, the scope of the IROL. Generally, the ROL directly concerns governmental actions in connection with the operation of the legal order.[4] Unlike at the domestic level, where the identity of the legal order is usually bound up with the identity of the state,[5] at the international level, where no world state exists, the identity of the international legal order has been contested. In many respects, international law operates in relation to domestic law. This is especially apparent where international law regulates intra-state relations, such as in the area of human rights law.[6] Thus, the question of the scope of the IROL arises: does the IROL pertain to the international level and the DROL to the domestic level? Or do they relate? If so, how?

Second, the subjects of the IROL. Generally, the ROL requires that the government should exercise its authority within a legal framework and that people should obey the law. The principle is generally valued since its observance furthers individual values, such as autonomy.[7] Domestically, the state and individuals are usually the subjects of the ROL, i.e., those in and under political authority.[8] Internationally, where primarily states but also international organizations are involved in the making, application and enforcement of international law, and where primarily states but also international organizations and, increasingly, individuals are called to obey international law, it may be asked who constitute the subjects of the IROL? Who should exercise its authority within an international legal framework and over whom and for whose sake?[9]

Third, the requirements of the IROL. Generally, the availability, importance and detailed design of various ROL requirements depend on the social and cultural conditions prevailing within individual legal orders.[10] At the domestic level, legal orders usually exhibit some specific characteristics besides the characteristics they share with one another. At the international level, the law also possesses its own particularities besides the features it shares with domestic law. At first blush, international law seems to differ more from domestic law than different domestic legal orders do from one another. Thus, the question of the requirements of the IROL arises: what does the ROL require at the international level? How, and to what degree, can and does the international legal order conform to and develop the principle?

This blogpost is based on Chapter 1 of ‘The International Rule of Law: Scope, Subjects, Requirements’.

[1] World Summit Outcome, UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1, paras 119, 134.

[2] Most recently: UNGA Res 75/141 (15 December 2020) UN Doc A/RES/75/141.

[3] See the Hague Journal on the Rule of Law <https://www.springer.com/journal/40803> accessed 6 July 2021, which also concerns the domestic rule of law.

[4] See Joseph Raz, The Authority of Law: Essays on Law and Morality (Clarendon Press 1979) 218; Grant Lamond, ‘The Rule of Law’ in Andrei Marmor (ed), The Routledge Companion to Philosophy of Law (Routledge 2012) 502.

[5] Joseph Raz, ‘The Identity of Legal Systems’ (1971) 59 California Law Review 795, 812.

[6] James Crawford, Chance, Order, Change: The Course of International Law: General Course on Public International Law (Hague Academy of International Law 2014) para 265.

[7] Jeremy Waldron, ‘The Rule of Law’, The Stanford Encyclopedia of Philosophy (Summer edn, 2020) <https://plato.stanford.edu/entries/rule-of-law/> accessed 6 July 2021.

[8] See Samantha Besson, ‘The Authority of International Law–Lifting the State Veil’ (2009) 31 Sydney Law Review 358 on the concept of legitimate authority.

[9] See Jeremy Waldron, ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law?’ (2011) 22 European Journal of International Law 315.

[10] See Raz (n 4) 214; Lamond (n 4) 502.