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The International Rule of Law: Scope, Subjects, Requirements

July 6, 2021

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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&gt; 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/&gt; 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.


The International Rule of Law by Denise Wohlwend, attorney-at-law, Zurich, Switzerland is out now.

Read chapter 1 free on Elgaronline

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Case study on ownership of inventions, creative work and trade secrets (IP) at a startup

June 24, 2021

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By Margo E. K. Reder[1]

June 2021

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Rethinking Cultural Tourism

June 22, 2021

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By Greg Richards[i]

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Law, Governance and Planetary Boundaries

June 17, 2021

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By Professors Duncan French and Louis J. Kotzé

The world is facing an ecological crisis; a human-made ecological crisis. President Biden has indicated that we have the 2020s to try to ameliorate the worst excesses of climate change; that ‘[s]cientists tell us that this is the decisive decade – this is the decade we must make decisions that will avoid the worst consequences of the climate crisis’ (Presidential speech, 22 April 2021). Climate change is a critical part of the ecological crisis, and while it may be the most important concern, but it is certainly not the only issue we are confronting. As Sir David Attenborough and Professor Johan Rockström show in the recently released Netflix film, “Breaking Boundaries: The Science of Our Planet”, we face a plethora of challenges, amongst them the collapse of the Earth’s biodiversity. As custodians, humanity has failed to care for the Earth, and we are now counting the cost and at an alarming and accelerated rate. Is it too late to stop ecological destruction? The signs are certainly not good … but there is still some hope!

One of the most potent tools developed in the past few years to measure our fate, as well as what progress towards better global environmental protection would look like, is the planetary boundaries framework. Developed by the Stockholm Resilience Institute in 2009 under the leadership of Prof. Johan Rockström, this framework identifies 9 global boundaries – amongst them climate change, biodiversity, ocean acidification, stratospheric ozone depletion, and land-use change – which individually and cumulatively delimit a safe operating space for humanity to continue to exist on Earth, but only so long as we stay within the boundaries. Once we cross these boundaries- and the evidence suggests we have in relation to biodiversity and biogeochemical flows (phosphorus and nitrogen pollution), the impact of humanity takes on a new level of risk previously unknown. Of course, as with all risk, the exact effect is difficult to predict accurately in advance, but the weight of evidence is such that we know that it will impact us in increasingly deleterious and potentially exponential ways. Climate change, as a singular boundary, is a particularly significant risk as its impact is likely to act as an aggravating multiplier of all other ecological risks that we face.

In our recently released collection, the Research Handbook on Law, Governance and Planetary Boundaries, an eminent group of legal scholars look at the legal implications of the planetary boundaries approach, and asks what can law do to support humanity to stay within the safe operating spaces identified by the boundaries. Of course, we have had 50 years of international environmental law, and with some success; but on the whole the state of the planet has only worsened over the time. Moreover, whilst environmental law has sought to engage with scientific evidence, it has often done so through a filter of politics and economic compromises, as well as North-South diplomacy, that lessens the ecological efficacy of the rules being adopted. Implementation and governance are similarly challenged by the tension between scientific necessity, political will and economic benefits.

The planetary boundaries approach – not perfect either in its design or elaboration – nevertheless challenges lawyers, policy-makers and civil society to look again at the global purposes underpinning multilateral environmental agreements, other environmental rules and the institutions that have been set up to facilitate global environmental governance. The planetary boundary framework offers an opportunity to ask not only whether these go far enough to address the deepening ecological crisis, but also whether actually we have the appropriate rules for the challenges we face? Some of the planetary boundaries remain noticeably weak in terms of legal coverage (mention has already been made of biogeochemical flows), whereas other challenges remain dogged by continued assertions of territorial sovereignty (eg. deforestation and land-use change), or lack of prioritisation, and even insufficient understanding (chemical pollution and the regulation of novel entities).

Though it is an obvious truism that only the right politics will generate the right law, and at present we don’t see enough of the former to have hope that we will see more of the latter, there is nonetheless much we can do within the current paradigm. These include full and effective support of and participation in those treaties that we do have; regular and effective monitoring, reporting and verification of State compliance; sufficient funding and technical assistance to the global South to ensure meaningful global engagement; and improving how our scientific knowledge feeds into the legal and policy sphere (and with much less filtering by divisional politics and economic wrangling).

But will all this, and other improvements within the current paradigm, be enough? The concern must be that we have left it too late, and that the planet is now faced with a future that no previous generation in the planet’s history has had to face before. Ever since the Industrial Revolution went hand-in-hand with the Enlightenment, we have believed ourselves masters of our own destiny. The Covid-19 pandemic has shown how easily we can be thrown off course from our perceived inalienable rise in our own self-improvement from one generation to the next. Of course, that is a myth perpetuated largely in the North at the expense, and as a result, of exploitation of the South. What nature is telling us is that very soon, the entire planet will look very different from that experienced even fifty years ago, with nature as our unempathetic master. Law, as a human tool, needs to lift the heavy burden, before what we think we know about the world is itself historical.


The Research Handbook on Law, Governance and Planetary Boundaries, edited by Duncan French, Pro Vice Chancellor of the College of Social Science and Professor of International Law, University of Lincoln, UK and Louis J. Kotzé, Research Professor, North-West University, South Africa and Senior Professorial Fellow in Earth System Law, University of Lincoln, UK is out now.

Read chapter one free on Elgaronline.

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Elgar Companion to Social Capital and Health

May 21, 2021

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Summary Blog Post from Sherman Folland

The Elgar Companion to Social Capital and Health, edited by Sherman Folland and Eric Nauenberg, presents new research from each of the social science disciplines: sociology, epidemiology, political science, economics, and history. The contributing authors are from a wide geographic area – Europe, North America, Asia and the Middle East. Each of the 18 chapters have been summarised and posted on Elgar.Blog. The list below contains links to each chapter’s blog post.

This book can be purchased in print via e-elgar.com and is also available online via Elgaronline.

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