1 Minimalist Perspective of Rule of Law for Nonviolence, Peace, and Public Order

The rule of law links analytically with the concept of peace by stressing the use of law to resolve conflicts in lieu of unbridled coercion and violence. At the international level of interstate relations, one of the core features of a “liberal international order” is the creation of multilateral institutions for the resolution of disputes under international law, thereby enhancing the security of states and their constituents.Footnote ⁹⁵ There is no greater risk of arbitrary power exercised over individuals than the violence of war. As the philosopher Bernard Williams writes, the “Hobbesian question” of securing “order, protection, safety, trust, and the conditions of cooperation” is the “first” political question: “[S]olving it is the condition of solving, indeed posing, any others.”Footnote ⁹⁶ It is for this reason that Steven Ratner prioritizes international law’s potential in providing a “pillar of peace” as a core aspect of theorizing international law in terms of justice.Footnote ⁹⁷ The same is true as regards the rule of law. In a “thin” sense, international law is foundational to political order. It supports the maintenance of secure political communities and thus enhances the prospects of rule-of-law protections for these communities’ members.Footnote ⁹⁸ Simply put, war and the immediate threat of war subject individuals and communities to increased risks of coercion and violence, whether by a foreign state, their own state, or nonstate actors. Practically, international law can protect, and has protected, individuals and communities from power’s arbitrary exercise.Footnote ⁹⁹

Relatedly, from a transnational perspective, democratic peace theory provides powerful evidence that democracies grounded in the rule of law are less likely to go to war against each other than are authoritarian states, the latter being more likely to go to war against both each other and democratic states.Footnote ¹⁰⁰ Where democratic norms grounded in the rule of law diffuse transnationally, the prospect of peace should increase, giving rise to “security communities.”Footnote ¹⁰¹ These communities may be tied together through shared norms and broader legal orders that become institutionalized, particularly at the regional level.Footnote ¹⁰² These two perspectives – democratic peace theory and transnational diffusion of norms – can be combined to show how rule-of-law norms at the national and international levels mutually and recursively support each other to enhance the prospects of peace and nonviolence, and thus reduce the likelihood of arbitrary power inflicted on individuals.

The international institutions created in the decades after World War II, at a minimum, provided rules for governing interstate relations and reducing the risk of armed conflict. One of the goals of promoters of the United Nations and its family of specialized international organizations was to ensure peace among states. The UN Charter prohibits the use of force – and thus war – to settle international disputes other than for self-defense against an armed attack (Article 51) or when authorized by the UN Security Council (Article 42). Regional regimes developed in parallel, with the aim of not only preserving peace within the region but also promoting nonviolent, law-governed, democratic transitions within states. After the end of the Cold War, international institutions grew in prominence. The UN Security Council has never lived up to its purpose under the UN Charter of ensuring “the maintenance of international peace and security.” Following the end of the Cold War, it reached consensus in a few prominent cases, giving rise to interventions, including to promote peace and security in post-conflict settings. Most notably, the Security Council authorized interventions in Iraq in 1991 following Iraq’s invasion of Kuwait (Resolution 688), in Bosnia in 1992 (Resolution 770), in Somalia in 1992 (Resolution 794), in Haiti in 1994 (Resolution 940), and in Afghanistan in 2001 (Resolution 1386). Regional organizations in Africa – ECOWAS and the African Union – even acquired the authority to intervene militarily in their member states to uphold law-governed, democratic transitions.

Among the core aims of international courts and other institutions is the peaceful resolution of disputes. The International Court of Justice (ICJ) offers a general-purpose mechanism for resolving disputes when states grant it jurisdiction. Counterfactually, without the ICJ and other international tribunals, it would be more difficult for states to peacefully resolve disputes.Footnote ¹⁰³ Take, for example, international boundary disputes. The ICJ has been particularly effective in peacefully resolving disputes in this area, complemented by the Permanent Court of Arbitration (PCA) and the International Tribunal for the Law of the Sea (ITLOS). From 1951 to 2021, there were 53 boundary disputes decided by international tribunals, comprising 22 land boundary disputes, 19 maritime boundary disputes, and 12 disputes involving land and sea questions. As shown in Table 1.1, the ICJ decided 37, the PCA 13, and ITLOS 3 in total.Footnote ¹⁰⁴ Overall, states complied either fully or partially with 45 (around 85 percent) of these judgments.

The ICJ is complemented by other general purpose and specialized international tribunals. For example, the World Trade Organization (WTO) provides a legalized system for resolving trade disputes. Without it, trade wars are much more difficult to restrain, since tit-for-tat retaliation can lead to greater distrust and conflict, as evidenced both by the tariff and currency wars of the 1930s and the US–China trade war launched by the Trump administration in 2018 as the United States blocked appointments to the WTO’s Appellate Body. Indeed, US Secretary of State Cordell Hull believed that “economic blocs of the 1930s, practiced by Germany and Japan but also Britain, were the root cause of the instability of the period and the onset of the war.”Footnote ¹⁰⁵ Among the aims of international investment arbitration is to resolve disputes over the treatment of aliens and their property that earlier had led to armed interventions. Although the investment law regime is subject to significant critique from a rule-of-law perspective, the illegality of the use of force to protect citizens’ property claims abroad represents, at a minimum, a significant advance.

Other international and regional fora provide jurisdiction for a range of disputes within their competence. The European Union (EU) provides a regional model. In this case, the EU and its predecessor organizations, starting with the European Coal and Steel Community, tied a powerful state (Germany) to a regional economic integration project with the aim of ensuring peace within Europe. Alec Stone Sweet analogously conceptualizes the European Court of Human Rights (ECtHR) under the Council of Europe as a Kantian “cosmopolitan legal order” advancing “Kant’s blueprint for achieving Perpetual Peace.”Footnote ¹⁰⁶ These international institutions provide settings in which states can air their differences and resolve them through law and third-party institutions.

Global threats other than war affect the security of borders. Most saliently, there are the increasing risks posed by climate change, which have led to severe droughts and storms, cataclysmic fires and flooding. These threats can spur new interstate conflicts, whether over access to scarce water from shared lakes and river systems or because internal upheaval spills over borders, increasing the risks of power’s arbitrary exercise. International cooperation is required to address the underlying causes of climate change, since one state’s efforts go to naught if greenhouse gas-intensive production shifts elsewhere and other states take no action. International law and institutions can facilitate such cooperation, such as through binding rules, reciprocal pledges, and the generation of funding to address climate change risks. As with international law aimed at reducing the risks of war, international law and institutions addressing climate change also can indirectly support rule-of-law goals by reducing the underlying risks of power’s arbitrary exercise.

Yet, international law and institutions also can support invasions and facilitate domination by powerful states over others. The 1884–85 Berlin Conference carved up Africa, which authorized King Leopold’s brutal exploitation of the Congo. The League of Nations’ and United Nations’ mandate and trusteeship systems served to legitimate Western nations’ continued rule over their colonies, with the UN Trusteeship Council continuing to operate until 1994 when the last trusteeship territory, the island of Palau, became independent from the United States. Powerful states remain dominant in shaping and enforcing international law today, as reflected in the veto powers of the five permanent members of the UN Security Council. The fact that these nations can block the application of any measure as applied to themselves when they violate the UN Charter and invade other countries undermines the rule of law – the first source of arbitrariness discussed earlier. Moreover, when the Security Council authorizes action, there is no international court or other institution to hold it, or countries acting under its authorization, accountable. For example, US and NATO excesses in enforcing a Security Council resolution for a “no-fly zone” in Libya in 2011 led to the overthrow of the Qaddafi regime, and increased insecurity, suffering, and mass violence in that country.Footnote ¹⁰⁷ In theory, interventions authorized by international institutions or referencing international law can reduce violence and conflict, but they also can worsen situations, rendering individuals more vulnerable to violence and arbitrary power.Footnote ¹⁰⁸ Rule-of-law norms thus must apply to international institutions themselves.Footnote ¹⁰⁹

Powerful actors also reference international law to authorize invasions that can lead to increased violence. For example, human rights claims helped frame the creation of a “responsibility to protect” doctrine, which can serve to justify “humanitarian interventions” and thus armed conflict in the name of human rights enforcement.Footnote ¹¹⁰ President Putin’s rhetoric to legitimize Russia’s 2022 invasion of Ukraine in the name of “humanitarian intervention” illustrates how powerful actors deploy humanitarian rhetoric and international law for self-interested reasons. Russia’s veto of a Security Council resolution calling on it to halt its attacks and withdraw from Ukraine illustrates how the Council’s permanent members block the application of international law against themselves.

2 Indirect Processual Links Supporting Rule-of-Law Practices within States

International institutions and international law are important for norm-making, oversight, assessment, and funding of rule-of-law initiatives that indirectly affect institutional practices within states.Footnote ¹¹¹ They are best viewed as part of larger transnational normative processes involving the conveyance of norms, which ultimately are applied within states toward individuals. Since World War II, international institutions have aimed to delimit state prerogatives affecting the rights of all persons, for which the rule of law is fundamental. They create focal points for transnational networks of civil society groups that can help to embolden and empower those advancing rule-of-law goals domestically. Domestic groups can use reporting, peer review, and judicial or other transnational mechanisms to enhance their positions in domestic political, judicial, and administrative institutions and processes, potentially “locking in” domestic rule-of-law reforms.Footnote ¹¹²

One way that scholars have framed the so-called liberal international order in the post-World War II era is to view states as agents of higher-order international rules for the protection of human rights, for which the rule of law provides a foundation. Political scientists Tanja Börzel and Michael Zürn labeled this a “postnational liberal international order” in that it comprised conditionally sovereign states, which gained legitimacy by enforcing and guaranteeing liberal rights, rules, and decisions implicating the rule of law.Footnote ¹¹³ The Universal Declaration of Human Rights sets out fundamental individual rights that states are obligated to respect through “the rule of law.”Footnote ¹¹⁴ The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Cultural and Social Rights, together with other global and regional treaties, elaborate these rights and create international mechanisms to oversee their application. Over time, these treaties’ membership, scope of coverage, and enforcement mechanisms have expanded.

We conceptualize the protection of human rights, as noted in Part I, as important means that complement and overlap with the rule of law in advancing rule-of-law goals. These rights are almost universally recognized in national constitutions,Footnote ¹¹⁵ which, in turn, reflect transnational processes of constitution-making and constitutional practice.Footnote ¹¹⁶ To be a modern state is to have a constitution, and increasingly since 1945 national constitutions define individual rights and obligate the state to respect and protect them through institutionalized means founded on the rule of law.Footnote ¹¹⁷ The Universal Declaration of Human Rights has been particularly influential in shaping rights provisions in national constitutions.Footnote ¹¹⁸ Such rights are developed recursively in international and domestic law and institutions through transnational processes.Footnote ¹¹⁹ In the words of the late ICJ judge James Crawford, one of the main roles “of international law is to reinforce, and on occasions to institute, the rule of law internally.”Footnote ¹²⁰ In this vein, in 2004 UN Secretary-General Kofi Annan stressed:

These protections are contingent on the rule of law.

The protection of individual rights against the arbitrary exercise of power is part of the mission of a range of international and regional institutions. Eight of the principal international human rights treaties include provisions that allow the relevant treaty bodies to receive individual communications alleging violations. The Human Rights Committee, for example, established under the ICCPR, can receive and decide on individual claims of ICCPR rights violations by the 106 states that have accepted the First Optional Protocol to the ICCPR.Footnote ¹²² The Human Rights Committee lacks power to enforce these rights directly, but states are obliged to respond to its findings. In 2022, for example, it found that Australia had arbitrarily interfered with the rights of indigenous Torres Strait Islanders by failing to protect them adequately from the effects of climate change.Footnote ¹²³

This is just one part of the architecture of international human rights institutions, which include the UN Human Rights Council, the Office of the High Commissioner for Human Rights under the UN Secretary-General, the committees created to oversee the other international human rights treaties, and various reporting and investigative bodies, such as the system of UN special rapporteurs. States are accountable to these bodies, and constituents within states can reference and appeal to their work to advance rule-of-law goals. For example, under the UN Paris Principles, over one hundred countries created national human rights institutions, which generated a transgovernmental system of monitoring that facilitates norm diffusion.Footnote ¹²⁴ Similarly, more reporting mechanisms can have catalytic impacts within countries through media coverage, nongovernmental advocacy, legislative references, and administrative follow-up.Footnote ¹²⁵

Regional bodies are particularly important for overseeing and monitoring human rights protections implicating rule-of law goals.Footnote ¹²⁶ The European Union established conditions for membership under which state institutions must guarantee democracy, the rule of law, and human rights (the “Copenhagen criteria” of 1993). It also established a mechanism for holding states accountable for violations of rights contained in the EU’s Charter of Fundamental Rights (CFR). National judges can hear individual complaints regarding violations of the Charter, and, where there is uncertainty, they can seek interpretive guidance from the Court of Justice of the European Union.Footnote ¹²⁷ The Court of Justice has found that Article 2 of the Treaty of the European Union “contains values [including the rule of law] which … are an integral part of the very identity of the European Union as a common legal order, values which are given concrete expression in principles containing legally binding obligations for the Member States.”Footnote ¹²⁸ It has applied the value of the “rule of law” embedded in Article 2 to require member states to maintain an independent judiciary, which is a major concern in Hungary and Poland.Footnote ¹²⁹ In parallel, the European Commission for Democracy and Law (the “Venice Commission”), within the Council of Europe, is charged with helping states that wish “to bring their legal and institutional structures into line with European standards and international experience in the fields of democracy, human rights and the rule of law.”Footnote ¹³⁰ These regional bodies can contribute to the formation of regional legal orders, although these too will show internal variation in terms of the concordance of regional, national, and local practice.Footnote ¹³¹ Variation among regional legal orders can reflect different regional traditions and transnational borrowings among neighboring countries.Footnote ¹³²

International human rights law and institutions arguably are most powerful when national institutions, such as national courts, reference and enforce international norms within national systems.Footnote ¹³³ This transnational framing of international law resonates with Kim Lane Scheppele’s assessment of international courts in “three-dimensional space.” As she maintains, international courts should not be viewed hierarchically as super appeals courts or primarily as “back stops” to national courts, but rather as part of broader normative orders that horizontally among themselves and vertically in relation to national courts affect institutional practices, particularly for the protection of the rule of law.Footnote ¹³⁴ All members of the Council of Europe must incorporate the European Convention on Human Rights into national law, and national judges in these countries reference the Convention in applying national law.Footnote ¹³⁵ The UK Human Rights Act, for example, requires that UK judges interpret statutes, so far as possible, in ways that are compatible with the UK’s international human rights commitments.Footnote ¹³⁶ In Germany, courts generally are obliged “to take note of and consider the relevant case law of the international courts with jurisdiction for Germany.”Footnote ¹³⁷

Direct decisions of a human rights court against one state can have effects in other states, illustrating transnational processes at work. Laurence Helfer and Eric Voeten, for example, provide evidence that ECtHR decisions against one country substantially increase the probability of national-level policy change across Europe, such as in the area of the protection of LGBT equality.Footnote ¹³⁸ Relatedly, within many Latin American countries one cannot meaningfully study constitutional law developments without incorporating their relation to the inter-American human rights system and changes in legal culture regarding the rule of law.Footnote ¹³⁹ These bodies generate interpretations that courts outside of their regions reference, including other regional courts and other national courts (such as in the United States and India).Footnote ¹⁴⁰

Courts also frequently apply or otherwise consider international law in interpreting national law.Footnote ¹⁴¹ In doing so, they participate in, and are critical to, international law’s implementation, development, and practice. As the Supreme Court of Canada stated in the case Nevsun Resources Ltd. v. Araya et al., “Canadian courts, like all courts, play an important role in the ongoing development of international law.”Footnote ¹⁴² They are important not only in “implementing” international law, but also in “advancing” it. In that way, they “contribute … to the ‘choir’ of domestic court judgments around the world shaping the ‘substance of international law.’”Footnote ¹⁴³ The opinion affirmatively cites former member of the Canadian Supreme Court Gérard La Forest, who writes, “our courts – and many other national courts – are truly becoming international courts in many areas involving the rule of law.”Footnote ¹⁴⁴

Many international organizations have incorporated and promoted rule-of-law norms in their rules and jurisprudence. For example, WTO panels have found that a central goal of the WTO legal system is to provide individual traders with certainty and predictability from the arbitrary action of other governments. In the United States – Section 301 case, the European Union challenged US unilateral legislation used to threaten US sanctions against it before the WTO dispute settlement system had completed its review. The panel found that such legislation could be challenged “as such” given its “‘chilling effects’ on the economic activities of individuals.” The panel stressed, “it would be entirely wrong to consider that the position of individuals is of no relevance to the GATT/WTO legal matrix … . The multilateral trading system is, per force, composed not only of States but also, indeed mostly, of individual economic operators. The lack of security and predictability affects mostly these individual operators.”Footnote ¹⁴⁵

Relatedly, in the United States – Shrimp case, a group of south and southeast Asian nations challenged a US ban on shrimp imports from countries that did not require certain shrimp trawling practices to protect endangered sea turtles. The Appellate Body found that, although the US objective was legitimate, the United States had failed to provide “due process” rights to the other countries to defend themselves and adapt to the new measure. It found that the application of the US measure was “arbitrary” in that the certification process was not “transparent” or “predictable,” did not provide any “formal opportunity for an applicant country to be heard or to respond to any arguments that may be made against it,” did not result in a “formal written, reasoned decision,” and offered “no procedure for review of, or appeal from, a denial of an application.”Footnote ¹⁴⁶ The Appellate Body focused, in particular, on the transparency obligations set forth in Article X of the GATT, pursuant to which WTO members are to publicize their laws and regulations so as to give foreign traders proper notice.Footnote ¹⁴⁷ These requirements respond to two of the sources of arbitrariness we foregrounded in Part I – the provision of transparent, published rules, and of an impartial tribunal where persons can respond to and challenge an authority’s decisions against them.

The United Nations, World Bank, and other organizations, including regional and national agencies, have created a rule-of-law industry of consultants giving technical advice, which intensified in the 1990s and 2000s.Footnote ¹⁴⁸ Discourse on the rule of law proliferated in Security Council resolutions, in Secretary-General reports, and in other UN groups, particularly as relates to UN peacebuilding and rule-of-law assistance in post-conflict settings.Footnote ¹⁴⁹ Some of these processes focused on legal empowerment to support civil society and grassroots organizations within states.Footnote ¹⁵⁰ As one UN document declares, the rule of law is a concept “at the very heart of the UN mission,” which is “interlinked and mutually reinforcing” with human rights and democracy.Footnote ¹⁵¹ In parallel, rule-of-law promotion became central within the World Bank and other development agencies.Footnote ¹⁵²

International and transnational processes are also critical for targeting the practices of nonstate entities, such as multinational corporations that operate in countries with few rule-of-law protections. The United Nations developed Guiding Principles on Business and Human Rights in 2011, to which multinational corporations agree to adhere.Footnote ¹⁵³ Private organizations and national regulatory agencies have promoted reporting on adherence to legal norms involving expanded environmental, social, and governance practices (ESG), as under the Global Reporting InitiativeFootnote ¹⁵⁴ and the Equator Principles.Footnote ¹⁵⁵ At times, different public and private initiatives combine in complex ways to bolster rule-of-law protections, such as in the industrial workplaces of global supply chains.Footnote ¹⁵⁶

However, just as international law and institutions can support rule-of-law processes, they also can undermine them. The turn to securitization after the September 11, 2001, terrorist attacks offers a powerful example. The UN Security Council created an Al-Qaida and Taliban sanctions regime in which a sanctions committee, mirroring the composition of the Security Council, could require the global freezing of an individual’s assets with no transparency or due process. Following the Security Council’s lead, countries around the world passed anti-terrorism laws that governments then used in repressive ways.Footnote ¹⁵⁷ Some human rights and other regional courts responded to these developments, most notably in the European Union in the Kadi case. There, the European Court of Justice voided an EU regulation implementing UN Security Council mandates to freeze the assets of suspected terrorists and their financiers on the grounds that it violated the accused’s due process rights.Footnote ¹⁵⁸ Other courts followed suit.Footnote ¹⁵⁹ This response catalyzed some Security Council reforms, notably the creation of an Office of the Ombudsperson, although its powers were limited.Footnote ¹⁶⁰

Private actors, such as multinational companies, also harness rule-of-law rhetoric to advance their material interests. Public and private actors have developed different indicators to measure the rule of law, some of which reflect a neoliberal tilt that can favor foreign capital.Footnote ¹⁶¹ The Heritage Foundation’s rule-of-law index, for example, focuses on the security of property rights.Footnote ¹⁶² Bilateral investment treaties and investor–state arbitration highlight how businesses may use international law to challenge government regulations that, investors contend, undermine certainty and predictability under the rule of law. The Tecmed arbitration, for example, recalling Hayek’s attack on social welfare legislation, set a standard for “fair and equitable treatment” under which “the foreign investor expects the host State to act in a consistent manner, free from ambiguity and totally transparently in its relations with the foreign investor so that it may know beforehand any and all rules and regulations that will govern its investments.”Footnote ¹⁶³ Because democratic political processes legitimately change environmental, labor, and other regulations over time, the Tecmed standard of fixing all rules and regulations in advance could be highly constraining. Business can use it not only to sue states for billions of dollars when new regulations violate business “expectations.”Footnote ¹⁶⁴ They also can chill regulation by threatening legal claims.Footnote ¹⁶⁵ Yet, domestic institutions often operate corruptly and arbitrarily, which is a central reason to create international institutional complements. It is thus critical to retain focus not only on rule-of-law goals but also on institutional alternatives to pursue them, all of which will be imperfect, but where some will be better or worse in different contexts.Footnote ¹⁶⁶

3 Direct Links between International Institutions and Individuals

International law also, in some cases, provides direct legal protections and legal accountability for individuals in support of the rule of law. It can do so in jurisdictions where international law is directly applicable as a cause of action before national courts, and under treaties granting individuals the right to bring direct claims against states before regional courts. The most active regional human rights court is the ECtHR, followed by the Inter-American Court of Human Rights (IACtHR), and the African Court on Human and Peoples’ Rights. These regional human rights courts receive and adjudicate individual claims of state violations of the relevant regional treaties.

In these cases, international law and institutions serve, in part, as a backstop to protect the rule of law, while also potentially shaping the normative field transnationally. International human rights courts, like the ECtHR and the IACtHR, can accept jurisdiction over a petition only after all domestic legal recourse has been sought and exhausted. In those cases, where domestic courts are to enforce rights under the convention but fail to do so, individuals retain the right to bring claims directly to the regional court in question. Stone Sweet labels such tribunals “trustee courts,” since they are charged not with advancing state purposes but rather with holding states accountable for violations of treaty-based rights against those within the state’s jurisdiction.Footnote ¹⁶⁷ As regards criminal law, international criminal law and courts primarily serve to establish responsibility for international crimes when domestic institutions are incapable of, or prevented from, doing so. The International Criminal Court (ICC) was designed to provide for legal accountability when state institutions fail. The ICC Office of the Prosecutor prosecutes genocide, crimes against humanity, war crimes, and the crime of aggression only when states are unwilling or unable to do so. In practice, it has catalyzed national investigations and some prosecutions for atrocity claims, and it can have other indirect effects.Footnote ¹⁶⁸ Likewise, in investment law, under the World Bank’s Convention on the Settlement of Investment Disputes, a “Contracting State may require the exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration under this Convention,” although this requirement often is not applied in practice.Footnote ¹⁶⁹

These complementarity mechanisms prioritize legal decision-making within domestic jurisdictions. They recognize domestic authorities as the primary guardians of the rule of law, but subject to an international accountability mechanism. In the process, they can enhance legal certainty and equal application of the law. By empowering domestic courts to oversee compliance with legal obligations (which directly or indirectly reflect international law), complementarity mechanisms can broaden international law’s reach within states.Footnote ¹⁷⁰ There is some (preliminary) empirical evidence that they may do so better than the alternative of using international tribunals as substitutes for domestic courts.Footnote ¹⁷¹

In practice, international institutions are both promoters (on the offensive) and subjects (on the defensive) of the rule of law. Although there is no centralized public power at the international level, international and regional institutions began to exercise increasing authority directly over individuals following the collapse of the Soviet Union and the end of the Cold War, particularly in relation to peacekeeping operations, sanctions, the use of force, and the US-pronounced “war on terror.” Given its new regulatory roles, the United Nations’ adherence to the rule of law has been seriously challenged. While the UN established thirteen peacekeeping operations between 1946 and 1988, with constrained roles that were primarily tasked with monitoring ceasefire lines, the UN Security Council has created fifty-eight additional operations around the globe since 1988, whose operational scope significantly expanded, including the provision of basic policing functions.Footnote ¹⁷² The Security Council authorized peacekeeping and rule-of-law-building mandates in Afghanistan, Iraq, Haiti, Sierra Leone, and Timor Leste, as have NATO and the European Union in Kosovo and the African Union in Somalia. When UN personnel were accused of murder, rape, torture, corruption, and other tortious acts, the United Nations claimed immunity, in violation of fundamental rule-of-law accountability norms, spurring protestations against UN practices.Footnote ¹⁷³ Similarly, while the Security Council applied only two sanctions regimes in its first forty-three years (against the racist, white minority regimes of Rhodesia and South Africa), since 1989 it has imposed thirty-two additional ones.Footnote ¹⁷⁴ The Security Council also increasingly authorized the use of force in its resolutions, rising from one extraordinary instance during the Cold War (in Korea when the Soviet Union briefly absented itself from the Security Council) to forty-eight resolutions between 1990 and 2014.Footnote ¹⁷⁵

The Security Council has been particularly challenged for exercising legislative and administrative power to combat “terrorism.” After the September 11, 2001, terror attacks, the Security Council issued a series of resolutions, most notably Resolution 1373 which, among other matters, required states to criminalize terrorism in domestic law and freeze assets of individuals and groups that the Security Council blacklists.Footnote ¹⁷⁶ Anti-terrorism laws proliferated globally, and government officials used them to advance their own agendas, including to criminalize dissent.Footnote ¹⁷⁷ The Security Council ordered the seizure of an accused’s assets with little to no due process, as noted in Section 2. As Scheppele writes, “for states whose commitment to international law is part of their own deep devotion to the rule of law as a basic principle of state legitimacy, new draconian anti-terrorism laws could be portrayed as necessary in order to comply with international law,” regardless of the lack of due process.Footnote ¹⁷⁸

From the vantage of TLO theory, national and regional courts can intervene to protect rule-of-law concerns involving international institutions, just as international institutions have done regarding national practices.Footnote ¹⁷⁹ They are part of a broader transnational legal process. As we have seen, some regional and national courts responded by constraining compliance with Security Council asset seizure orders where they were deemed to violate rule-of-law requirements within regional and national legal orders, as in the Kadi case.Footnote ¹⁸⁰ The Security Council responded in 2009 by creating the Office of the Ombudsperson, empowered to investigate and make “delisting” recommendations. In this transnational sense, the late judge James Crawford was not wholly correct when he wrote that only when the International Court of Justice has “clear jurisdiction judicially to review action of all United Nations political agencies, including the Security Council … could the rule of law be said to extend to international political life.”Footnote ¹⁸¹ Nonetheless, serious challenges remain, illustrated by the ombudsperson’s resignation in 2021 on rule-of-law grounds, including the lack of institutional independence of the Office of the Ombudsperson, the Security Council’s extensive reliance on confidential evidence, and a refusal to permit petitioners to examine the reasons for their inclusion on the sanctions list.Footnote ¹⁸² These ongoing challenges continue to catalyze responses and reform proposals from within and outside the Security Council by state and nonstate actors.Footnote ¹⁸³

Because international law and institutions not only support rule-of-law protections but also affect individuals directly in ways that implicate the rule of law, scholars have turned to analytic frames borrowed from constitutional and administrative law for assessing and constraining international institutions. Global administrative law theorists foreground tools of accountability, transparency, and reason-giving as checks on international and domestic institutions.Footnote ¹⁸⁴ Other scholars have developed global constitutionalist frames,Footnote ¹⁸⁵ transnational pluralist ones,Footnote ¹⁸⁶ and constitutional pluralist hybrids,Footnote ¹⁸⁷ for reconceptualizing international law in ways that place greater focus on the individual and individual rights.Footnote ¹⁸⁸ These normative projects aim, in different ways, to advance rule-of-law concerns globally, including in response to the enhanced role and authority of international institutions since the 1990s. These conceptions of international law are components of viewing the rule of law within a broader transnational context involving transnational legal ordering.Footnote ¹⁸⁹

1 Our Argument

From a transnational perspective, this volume assesses whether there might be common trends regarding rule-of-law protections at the national and international levels, involving cycles of settlement and unsettlement of rule-of-law norms and practices. We ask: Do rule-of-law norms and practices shift at the national and international levels in parallel? Our working hypothesis is that they do, although with variation across and within regions. Given the transnational enmeshment of national and international norm-making and practice, we contend that developments at one level can have reinforcing – and subverting – effects on the other in a recursive manner. These trends can give rise to virtuous and vicious cycles. Where national rule-of-law practices erode, especially in powerful states, and where authoritarian states become more powerful globally, we expect that such erosion and power shifts will implicate international law and practice. Where international rule-of-law norms and monitoring and enforcement institutions weaken, national and local actors will have fewer institutional and normative resources available to protect the rule of law.

To flesh out our claim, we note that rule-of-law promotion proliferated as part of transnational legal ordering processes after the collapse of the Soviet Union in 1990.Footnote ¹⁹⁰ Liberal norms diffused transnationally, backed by significant economic incentives, such as the carrot of joining the European Union, spurring studies of “the global diffusion of markets and democracy.”Footnote ¹⁹¹ The wave of democratization and transnational constitutional processes, in turn, spurred greater openness of state legal systems toward international law.Footnote ¹⁹² At the time, as former Soviet bloc states gained independence, they joined the key international institutions at the core of an international order grounded in law: the European Union, the European Convention on Human Rights under the Council of Europe, the World Trade Organization, and the various specialized organizations of the United Nations system. International courts and cases before them proliferated beyond Europe. As captured by the Project on International Courts and Tribunals, the number of international courts rose from six to over two dozen between 1989 and 2014, which collectively issued over 37,000 binding legal rulings.Footnote ¹⁹³ In parallel, states adopted new constitutions and institutions that created new resources and mechanisms for national and local actors to enhance rule-of-law protections. These constitutions incorporated international norms and created new institutional oversight and enforcement processes. During this period, indicators on the rule of law and neighboring concepts such as democracy reached their peaks.Footnote ¹⁹⁴ There were, of course, severe challenges in advancing the rule of law in many jurisdictions, especially those with weak institutions.Footnote ¹⁹⁵ Nonetheless, the overall trends were positive, captured in Kathryn Sikkink’s claim of a transnational “justice cascade.”Footnote ¹⁹⁶

In the last decade, by contrast, indicators measuring the rule of law, together with complementary concepts such as democracy, have declined, while national demands for greater autonomy from regional and multilateral institutions and their normative constraints have increased. Overall, we appear to be moving from what Thomas Carothers characterized as a “rule-of-law revival”Footnote ¹⁹⁷ in the 1980s to what can be characterized as authoritarian relapse and rule-of-law decline today.Footnote ¹⁹⁸ In an interconnected world, we have turned from a period characterized by the development of institutions and transnational processes promoting “transitional justice,” as reflected in a profuse literature,Footnote ¹⁹⁹ to processes consolidating what can be viewed as “gradual autocratization.”Footnote ²⁰⁰ In this shift, authoritarian regimes do not simply terminate institutions developed during the rule-of law-revival. Rather, having inherited them, they mimic and harness formally liberal mechanisms for authoritarian ends.Footnote ²⁰¹ Witness Victor Orbán referencing other countries’ institutional mechanisms while adapting them in new ways to defend his authoritarian, anti-liberal aims.Footnote ²⁰² Anti-liberal movements learn from and adapt these processes for similar authoritarian purposes.Footnote ²⁰³ These strategies illustrate the risks of focusing exclusively on rule-of-law checklists as opposed to goals and practices. As David Law writes, the role of law and courts in authoritarian regimes “deserves attention for the insights that it contains into the biases and vulnerabilities concealed within the structure of our own judicial institutions.”Footnote ²⁰⁴ One can add the vulnerabilities contained within our executive, legislative, and administrative institutions as well.

There can be considerable resistance to these developments, so that change will be neither linear nor determined. Challenges to the rule of law in Hungary and Poland, for example, have catalyzed responses from the European Union, as well as from internal groups.Footnote ²⁰⁵ Yet, there are also powerful forces aimed at constraining regional oversight, whether through exit (such as Brexit) or voice, which will weaken regional institutions, their influence, and the resources they provide to local actors (say, following the election of Georgia Meloni in Italy or if Marie Le Pen were to triumph in France). Other international shifts will affect these internal regional developments, such as resurgent nationalism and coercive geopolitics in powerful states such as China, Russia, and the United States. Sections 3, 4, and 5 provide empirical evidence and explanations regarding enmeshed trends at the international and national levels, and the cycles they represent.

2 The Challenge of Measurement

Before discussing the empirical evidence, we stress both the challenge of measuring trends in rule-of-law protections and the importance of doing so. Given different conceptions of what constitutes the rule of law and the means to achieve it, different indicators measure different things. Measurements use different sources of information, which raises challenges regarding validity, reliability, and bias in the data, especially as regards uneven cross-country data. Moreover, even where common trends are identified regarding rule-of-law practices, it is very difficult to establish the causal forces behind these trends.Footnote ²⁰⁶

A number of indexes purport to measure the rule of law, but they measure different things, highlighting certain goals and means over others. Mila Versteeg and Tom Ginsburg examined rule-of-law indicators developed by the World Bank, the Heritage Foundation, Freedom House, and the World Justice Project, assessing their different focuses and their overlaps.Footnote ²⁰⁷ These indexes differ in emphases, with the Heritage Foundation focused to a greater extent on property rights and Freedom House more on human rights, while the World Bank and World Justice Project examine broader ranges of issues. One might thus expect these indicators to be weakly correlated.

Despite the use of different component measurements, Versteeg and Ginsburg find “the four indicators … to be remarkably similar.”Footnote ²⁰⁸ They show that the measurement of “corruption,” which – like the rule of law – encompasses the goal of “government impartiality,” closely correlates with all four rule-of-law indicators.Footnote ²⁰⁹ The correlation of these measurements could suggest that they indeed capture something broadly about empirical trends. Corruption, for example, affects each of the five sources of arbitrariness noted in Part I, as it leads to non-transparency, inconsistency, partiality, and a lack of proportionality, which the powerful can harness for authoritarian ends.

Versteeg and Ginsburg nonetheless raise caution. In particular, they question the extent to which convergences in measurement may reflect a common reliance on expert perceptions and information constraints given the challenges of gathering data. They also note that, by combining multiple factors into a single ordinal number, indexes will conflate different aspects of the rule of law and the means to attain it.Footnote ²¹⁰ They thus applaud the World Justice Project’s index for being modular, so that researchers can use the database to focus on particular aspects (or sources of arbitrariness),Footnote ²¹¹ which then can be assessed in different contexts.

Lon Fuller long ago wrote that we need “standards against which the degree of attainment of a condition of legality could be evaluated.”Footnote ²¹² Developing and revising such standards, nonetheless, should always focus on the ends of the rule of law and not be fixed on particular institutional mechanisms. Given differences in social, cultural, and institutional contexts and heritages around the world, as well as the role of informal institutions, there is no one means to advance the rule of law. Since advancing the rule of law will take different forms in different contexts, the promotion of the rule of law will always bedevil advocates and institutions.Footnote ²¹³

Despite these challenges, we contend that empirical study is crucial, and quantitative and qualitative data and studies are improving thanks to sustained efforts, ranging from ethnographies to large-n statistical analyses. The large-n studies tend to rely on surveys and thus assess perceptions within countries. The World Justice Project has developed extensive surveys, which it uses to assess the perceptions of lawyers and lay persons within countries.Footnote ²¹⁴ These perceptions are important from the perspective of TLO theory, since the law in action depends on the mentalities of actors, what they take as norms for appropriate behavior, affecting social expectations, communication, and behavior.Footnote ²¹⁵ To assess social context and institutional behavior, one needs empirical study, which calls for the integration of law and the social sciences.Footnote ²¹⁶ If our argument is correct, then such empirical work must engage with transnational processes to assess how national and international trends interact.

3 National Rule-of-Law trends

The past decade has witnessed a worrisome decline in the rule of law at the domestic level across a range of countries, on a variety of measures. In this section, we look at several of those indicators.Footnote ²¹⁷ Each of them relies on a different set of observable features of governments – features that plausibly capture key behavioral implications of our conception of the rule of law (legal rules that set limits on the arbitrary exercise of power by some persons over others) in light of different sources of arbitrariness.Footnote ²¹⁸ Each set shows overall declines in the rule of law within both democracies and authoritarian regimes. These declines generally do not reflect sudden transitions, such as following a military coup, but rather are gradual declines in the degree of rule-of-law protections within countries at different starting points.

According to World Justice Project (WJP) data (Figure 1.2),Footnote ²¹⁹ over the past eight years forty-three states show a significant decrease in the rule of law, whereas only three show a significant improvement.Footnote ²²⁰ Table 1.2 lists the states with the largest declines. Most of the states with a drop in the rule of law started from a relatively low point, though two (Poland and the Republic of Korea) began with scores above 0.70 (on a scale of 0–1).Footnote ²²¹ For those distrustful of quantitative indicators, the list of states – which includes Brazil, Egypt, Hungary, Poland, the Philippines, Turkey, and Venezuela – resonates, in our view, with common understandings. Overall, the WJP reports that in every year since 2015 the rule of law diminished in about 60 percent of countries, with a peak of 74 percent of countries showing a decline in 2020.Footnote ²²²

Figure 1.2

Changes in the rule of law, 2015–23, World Justice Project.

When we disaggregate the WJP data in terms of those indicators most directly tied to the five sources of arbitrariness that we identified in Part I, we find similar declines, as captured in Table 1.3. Using WJP data, we constructed indicators for three of the five sources of arbitrariness.Footnote ²²³ We then compared countries’ performance on these measures in 2015 and 2023. Strikingly, for all three sources of arbitrariness, far more countries underwent an increase in arbitrariness than experienced a decline, as shown in Table 1.3. It is also telling that 58 countries showed greater arbitrariness on all three counts in 2023. Out of 113 countries for which we have data, 88 showed an increase in two or more of the sources of arbitrariness.

Figure 1.3 charts the number of countries showing an increase and the number undergoing a decline in the Freedom House rule-of-law indicator. Strikingly, in no year since 2005 has the number of countries showing an increase in the rule of law exceeded the number suffering a decline. Since 2017, the number of countries expanding the rule of law has dropped dramatically, while the number with a declining rule of law has remained high. Rule of law scores from the Varieties of Democracy project depict a similar trend. Rule of law scores began a steady rise after the 1990 collapse of the Soviet Union. From 1990 until 2012, states showing increases outnumbered states undergoing declines in all but two years. By contrast, from 2013 through 2021, declines were more numerous than increases in all but two years.Footnote ²²⁴

Figure 1.3

Freedom House rule of law index.

In some instances, autocratic governments expanded their powers (as in Niger and Belarus). In others, elected governments eroded the rule of law by bringing formerly independent regulatory bodies under executive control and replacing judges on supreme courts (as in Hungary and Poland). Table 1.4 lists the twenty countries with the largest declines in the rule of law under two measures (V-Dem and Freedom House). Turkey has undergone an especially striking retreat. Notably, Freedom House lists the same democracies that display declines in the V-Dem rule-of-law indicator, but it also includes the United States.

Democracy and the rule of law are tightly interlinked. On the one hand, the rule of law is an essential prerequisite of democracy, since people cannot freely participate if they fear being subject to the arbitrary exercise of power, and election results can be manipulated without a trustworthy, independent, and institutionalized election system. On the other hand, strong democratic institutions can serve as an important bulwark of the rule of law, tempering the exercise of power (although not necessarily, as Hungary and Poland demonstrate). Measures of democracy show striking declines over the past decade. Figure 1.4 shows the net change in the level of democracy in the world according to two V-Dem indicators. The first measures the extent to which countries meet the criteria of polyarchy. It captures the “electoral principle of democracy,” which, through free and fair electoral competition, makes “rulers responsive to citizens.”Footnote ²²⁵ The second, liberal democracy, “emphasizes the importance of protecting individual and minority rights against the tyranny of the state and the tyranny of the majority,” in addition to free elections.Footnote ²²⁶ The graphs indicate the balance between the number of states showing an increase in a given indicator (greater democracy) and the number of states exhibiting a decrease (diminished democracy). For each of the last ten years, declines have been more numerous, sometimes dramatically so.

Figure 1.4

Decline in democracy indicators.

Table 1.5 lists the countries showing the greatest declines in both measures. Many of the same democracies that suffered drops in measures of the rule of law (Brazil, Hungary, Philippines, Poland, Turkey, United States) also show declines in measures of democracy. India appears in both lists as well. In parallel, the Economist Intelligence Unit downgraded Japan, South Korea, and the United States from “Full Democracies” to “Flawed Democracies” between 2014 and 2019. For the first time in three decades, it found that over half of the world’s countries, governing over half of world population, are neither “Full” nor “Flawed Democracies.”Footnote ²²⁷ Similarly, in its Freedom in the World 2021 report, Freedom House warned that 2020 “marked the 15th consecutive year of decline in global freedom. The countries experiencing deterioration outnumbered those with improvements by the largest margin recorded since the negative trend began in 2006.”Footnote ²²⁸ In other words, three complementary mechanisms for tempering the arbitrary exercise of power (rule of law, democracy, and civil and political rights) declined in parallel.

Sandholtz examines three key indicators of decline that implicate the rule of law: judicial independence, independent media, and civil society.Footnote ²²⁹ Civil society organizations are key compliance constituencies needed to keep governments and other powerful actors accountable, and independent media and independent courts provide important support for their efforts. These institutional actors help protect the rule of law by casting light on and countering power’s arbitrary exercise, and all three are under attack. Judicial independence has declined globally through the purging and intimidation of judges and the packing of courts with government loyalists, as illustrated by authoritarian strategies in Hungary and Poland.Footnote ²³⁰ The Hungarian government even passed legislation voiding the entire jurisprudence of the country’s constitutional court in order to thwart institutional checks on its power.Footnote ²³¹ Freedom House documents, in parallel, continuous attacks on and deterioration of media independence around the world over a decade, “with new forms of repression taking hold in open societies and authoritarian states alike.”Footnote ²³² Governments in traditional democracies have increasingly cracked down on independent media, with many launching tax and other civil and criminal investigations in retaliation for adverse coverage. Reporters Without Borders dropped Japan to 71st in “world press freedom rankings,” while India, under President Modi, fell to 150th.Footnote ²³³ UNESCO’s 2022 report finds that “[o]ver the past five years, approximately eighty-five percent of the world’s population experienced a decline in press freedom in their country.”Footnote ²³⁴ Governments, in addition, increasingly repress civil society organizations, including by cutting off financial support from foreign sources.Footnote ²³⁵ Following the lead of China and Russia, dozens of countries have adopted new restrictions on foreign funding of nongovernmental organizations, and many have prohibited such funding.Footnote ²³⁶ UN High Commissioner for Human Rights Michelle Bachelet rebuked Israel, for example, when it not only cracked down on civil society groups but, in December 2021, designated without substantiation as “terrorist organizations” six Palestinian civil society groups that had long defended human rights and delivered humanitarian aid.Footnote ²³⁷ These trends bode ill for the rule of law.

4 International Trends

There is parallel evidence of decline in international law and institutions, which some now call a “crisis,” a decline that implicates rule-of-law protections.Footnote ²³⁸ The evidence that we present is largely of a qualitative nature. It concerns challenges to, and constraints placed on, international courts, a turn away from treaties to informal agreements and understandings, the neutering of international institutional scrutiny of human rights and rule-of-law violations, and the distortion and harnessing of international law to support repression, such as in the name of suppressing “terrorism,” “separatism,” and “extremism” to maintain “public order.”

First, states have negatively responded to international judicial oversight over the last decade, and in particular by international human rights courts.Footnote ²³⁹ To start, there has been considerable backlash against the flagship human rights court, the ECtHR, which addresses the “rule of law” in its jurisprudence, building on the preamble to the European Convention on Human Rights.Footnote ²⁴⁰ States have done so through threats of withdrawal, pressures for greater accommodation through the principles of subsidiarity and the margin of appreciation, reduced support from national courts, and executive neglect of the Court’s rulings. It was the rising number of claims – and their increased political and economic stakes – that triggered state responses. For example, the number of individual applications charging Russia with human rights violations nearly doubled from 1999 to 2001, and they rose to 12,328 in 2013. Following the ECtHR judgment in Yukos v. Russia, which ordered 2.51 billion dollars in compensation to Yukos shareholders for unfair tax proceedings,Footnote ²⁴¹ President Putin signed a law that gave the Constitutional Court of Russia the authority to decide whether to comply with ECtHR judgments.Footnote ²⁴² Following its invasion of the Ukraine in 2022, Russia was expelled from the Council of Europe and ceased being a party to the European Convention on Human Rights on September 16, 2022.Footnote ²⁴³

Long-standing democracies also challenged the Court, including Denmark, Switzerland, and the United Kingdom. The United Kingdom, for instance, had generally shown a high rate of compliance with ECtHR judgments, but a pair of cases – one involving prison inmates’ right to vote and another involving the deportation of a Muslim cleric to Jordan – raised the British government’s ire and fueled a rise in public opinion favorable to withdrawing from the Court. At the 2012 Brighton ministerial conference on the future of the ECtHR, the British government sought to trim the Court’s powers,Footnote ²⁴⁴ a project that so far has failed.Footnote ²⁴⁵ However, Conservative governments in power until mid 2024 considered withdrawing from the Convention and replacing the Human Rights Act so that the Convention is no longer incorporated into UK law.

There has been similar backlash against other regional human rights courts, as well as the International Criminal Court. In the Americas, after a series of rulings by the IACtHR against Venezuela, the Constitutional Chamber of the country’s Supreme Tribunal of Justice blocked six IACtHR judgments from being applied. President Hugo Chávez then withdrew Venezuela from the Inter-American Convention on Human Rights in 2012, following Trinidad and Tobago earlier. After the IACtHR ruled in 2014 that the government of the Dominican Republic violated the Inter-American Convention on Human Rights by denying identity documents and Dominican nationality to Haitian immigrants and their descendants, and detaining and expelling them, the Dominican Constitutional Tribunal issued a decision that appeared to nullify the country’s IACtHR membership and remove it from the IACtHR’s jurisdiction.Footnote ²⁴⁶ In April 2019, Argentina, Brazil, Chile, Colombia, and Paraguay issued a joint declaration to the Inter-American Commission on Human Rights calling for greater national “autonomy,” signaling that the inter-American human rights system had become too intrusive in challenging state failures to respect individual rights. The African Court on Human and Peoples’ Rights has faced similar pressures, with only eight states currently permitting nationals to bring cases to the Court, after four states – Rwanda, Tanzania, Benin, and Côte d’Ivoire – withdrew their permission for direct access, following decisions against them.Footnote ²⁴⁷ Similarly, Burundi and the Philippines have withdrawn from the International Criminal Court, and other states have threatened to follow suit.Footnote ²⁴⁸

The backlash is not limited to human rights courts. China rejected a ruling of the Permanent Court of Arbitration against its claims in the South China Sea, calling the decision “wastepaper.”Footnote ²⁴⁹ The United States neutered the Appellate Body of the World Trade Organization by blocking the appointment of new members after existing members’ terms expired, a tactic that Zimbabwe (under President Mugabe) earlier used against the South African Development Community Tribunal following unfavorable rulings regarding its land seizures.Footnote ²⁵⁰ The United States then increasingly deployed its economic power unilaterally to challenge foreign practices it did not like, in violation of WTO law, a tactic that China also adopted. Similarly, a number of states terminated (or allowed to expire) bilateral investment treaties instituting investor–state dispute settlement (including India, Indonesia, South Africa, and the United States regarding NAFTA’s investment chapter), and some withdrew from the International Centre for Settlement of Investment Disputes, which provides a procedural framework for such arbitrations. Investor–state arbitral tribunals themselves have raised rule-of-law challenges given their asymmetric nature, where only investors can bring claims and investors appoint one of the three arbitrators. Still, if the goal is enhanced rule-of-law protections within states, the better institutional alternative will vary with different contexts, which alternatives should include international venues, especially when national rule-of-law indicators decline.Footnote ²⁵¹

Second, in addition to challenges to international courts, states have turned away from treaty-making and increasingly made use of informal, nonbinding mechanisms.Footnote ²⁵² Since the early 2000s, there has been a quantitative decline in new treaties, and the International Law Commission’s work has ceased giving rise to treaties.Footnote ²⁵³ Nonbinding international norms – sometimes referred to as “soft law” – can exercise normative influence in support of problem-solving, and thus help develop international law and enhance its effectiveness and legitimacy.Footnote ²⁵⁴ The turn to less formal mechanisms thus should not necessarily worsen rule-of-law protections.Footnote ²⁵⁵ Nonetheless, the move away from multilateral treaties and from publicized written commitments monitored by third-party institutions reflects systemic changes that are worrisome, especially with the rise in power of authoritarian states and heightened geopolitical competition and conflict. As geopolitics and security become more pervasive concerns and more issues are viewed in zero-sum terms, states use less formal and less transparent means to govern their relations. These shifts toward informal, nontransparent mechanisms reduce accountability and enhance the ability of powerful states to deploy coercive leverage to advance their interests. For example, China’s Belt and Road Initiative illustrates the use of informal mechanisms, such as memoranda of understanding and undisclosed contracts, through which ruling elites form economic and political ties. Deploying these mechanisms, China is well positioned to exercise leverage as it works to create a China-centric economic order.Footnote ²⁵⁶ Given a lack of public scrutiny, these types of arrangements, in turn, raise corruption concerns, which is a key source of arbitrariness and thus an indicator of the undermining of the rule of law.Footnote ²⁵⁷ Authoritarian governments are likely to rely on these types of less formal arrangements, which provide fewer specific legal commitments backed by third-party dispute settlement.Footnote ²⁵⁸

Third, authoritarian governments, in parallel, have worked to neutralize existing international institutions’ scrutiny of human rights practices, while developing and harnessing international norms to enhance state control. China’s and Russia’s leaders have viewed international civil and political rights in support of rule-of-law norms as a tool used by the West to weaken their governments’ standing internationally and to destabilize their governments internally. In response, they aim to reshape international law to protect their hold on power, whether by curtailing existing institutions’ oversight of compliance with international law commitments, or by creating new institutions and new legal norms.Footnote ²⁵⁹

These governments use different forms of leverage to curtail international scrutiny of their internal practices by engaging, as Ginsburg writes, in a “concerted effort to neutralize multilateral forums as vehicles for democracy promotion,” human rights, and the rule of law.Footnote ²⁶⁰ China has a seat on the Human Rights Council, where (for the 2020 Council session), nearly half of the membership (21 out of 47 countries) consisted of autocracies,Footnote ²⁶¹ despite the formal requirement that members of the Council have a strong record of respecting human rights. Following the issuance of a report by the Office of the United Nations High Commissioner for Human Rights in August 2022, which found that China’s human rights violations in Xinjiang could amount to crimes against humanity, China called the Office a “thug and accomplice of the US and the West.”Footnote ²⁶² China then won a vote in the Human Rights Council to block further scrutiny of the report’s findings, defeating a US proposal.Footnote ²⁶³ In parallel, China has attempted to defund human rights promotion in UN peacekeeping operations, block the accreditation of civil society groups before the UN, and curtail the role of UN Special Rapporteurs.Footnote ²⁶⁴ The result could be a decline in human rights monitoring and enforcement and, more generally, a reduced use of third-party institutions, including international courts.Footnote ²⁶⁵

Fourth, authoritarian governments aim to reshape the content of international law in ways that they can deploy domestically to support their hold on power. They do so, in part, through increasing their participation and leadership roles within international organizations in order to exercise influence. China, for example, has successfully pursued leadership roles for Chinese nationals. In 2020, Chinese nationals headed four of the UN’s fifteen agencies; no other country’s nationals led more than one.Footnote ²⁶⁶ Chinese nationals led the Food and Agricultural Organization (FAO), critical for issues of food security and standard setting; the UN Industrial Development Organization (UNIDO), which has praised and supported China’s Belt and Road Initiative; the International Civil Aviation Organization (ICAO), which controversially worked to isolate Taiwan; and the International Telecommunications Union (ITU), which helps shape the governance of information and communications technologies, implicating government controls. In addition, a Chinese national almost became Director General of the World Intellectual Property Organization (WIPO) in 2020, losing only after concerted US and European lobbying for an alternative candidate from Singapore.Footnote ²⁶⁷ In parallel, China has dramatically increased its leadership positions in international standard-setting bodies across councils, technical management boards, technical committees, subcommittees, and working groups. Such standards are crucial for infrastructure projects, including for telecommunications, where Chinese companies are among the world’s leaders. China regularly volunteers to host standards meetings and provide secretariat services. Chinese nationals held the presidencies of the International Standardization Organization (ISO) from 2015 to 2017, and of the International Electrotechnical Committee (IEC) from 2020 to 2022. A Chinese national also presided over Interpol, the International Criminal Police Organization, until (ironically) China arrested him on a trip home in 2018, in the middle of his term, on charges of corruption and bribery.

Through enhancing their engagement in international institutions, authoritarian governments can reshape, develop, and then harness international norms for authoritarian ends at home. China and other authoritarian states have promoted international law norms of sovereignty and noninterference in a state’s internal affairs. In this way, China hopes to counter the individualist turn of international law, with its increased emphasis on human rights, which the United States and Europe championed during the Cold War, and which became more institutionalized after the Soviet Union’s collapse. China and other authoritarian states, in particular, have championed the development of international norms and mechanisms that they can use for repressive purposes. China, for example, has worked within the International Telecommunications Union to develop a new internet infrastructure that facilitates state control. It successfully supported a UN General Assembly resolution on “Countering the Use of Information and Communications Technologies for Criminal Purposes” that it and others can reference to justify internal suppressive measures. It also promulgates regional norms that it can use to repress internal dissent and counter foreign critique, such as regards China’s suppression of Uyghurs, Tibetans, and the people of Hong Kong. Through the Shanghai Cooperation Organization, China cooperates with neighboring countries to combat the “three evils” of “terrorism, separatism, and extremism,” including through international extradition agreements.Footnote ²⁶⁸ These agreements serve to legitimize China’s targeting of human rights and democracy activists, including their lawyers, and its suppression of free expression and the free flow of information on national security grounds. Russia and other states have followed its lead. The result of these shifts could be the recasting of international law and institutions to better serve authoritarian interests, leading to an “authoritarian international law.”Footnote ²⁶⁹

One should be careful not to idealize the turn to international law and institutions in the 1990s and 2000s given the exercise of Western hegemony.Footnote ²⁷⁰ At the same time, one should assess the implications of existing trends for the rule of law from a comparative institutional perspective. That is, one should ask whether the rising challenges to international institutions and law will advance or undermine rule-of-law goals. The evidence presented above indicates that domestic rule-of-law protections are declining overall, and that they parallel challenges to international law and institutions. These dual challenges to rule-of-law goals at the domestic and international levels, we contend, are part of a broader, transnational, interactive, negative cycle.

5 The Enmeshment of National and International Trends

Rule-of-law norms are part of a liberal tradition that can have quite radical political implications.Footnote ²⁷¹ They are increasingly contested through a combination of illiberal domestic developments within traditional democracies (including in the United States) and shifts in international power with China’s rise as an authoritarian state. Internally, a populist, anti-globalist backlash against the international order has upended domestic politics in many countries. President Donald Trump’s “America First” attacks on the international legal order, which the United States had predominantly forged, illustrate the links between national processes and international institutional checks. The Trump administration and its allies within the United States promoted and forged new ties with nationalist and authoritarian parties and leaders abroad while attacking, neutering, and withdrawing from international institutions and treaties, from the UN Human Rights Council to the International Criminal Court and its Office of the Prosecutor. Externally, international anti-terrorism norms and institutions promoted by the United States in the early 2000s already had created new institutional and normative resources for authoritarian governments.Footnote ²⁷² These authoritarian governments, most notably China, rose as global economic powers, creating new challenges for international institutions, and particularly international courts. The result could be the “dejudicialization of international politics.”Footnote ²⁷³

The upsurge of illiberalism and economic nationalism within the United States undercut the liberal international order from within, as the United States under the Trump administration paradoxically became a revisionist power. Europe has faced parallel internal contestations, illustrated by Brexit, the rise of illiberal parties within member states, especially but not only within Central and Eastern Europe,Footnote ²⁷⁴ and an increasingly aggressive Russia. Externally, an authoritarian China now vies for regional and global leadership to shape international norms and institutions, and its repressive politics are fundamentally at odds with liberal values. These domestic and international developments interrelate, and they pose severe challenges to the advancement of rule-of-law goals and practices.

The transnational development and conveyance of norms occur through different mechanisms, including through coercion, reciprocity, socialization, and modeling.Footnote ²⁷⁵ In parallel, iterative transnational processes of norm development are driven by the indeterminacy of legal texts, ideological tensions and contradictions within texts, diagnostic struggles over the nature of the problem (including as contexts change), and actor mismatch between those that adopt norms and those that implement them in practice.Footnote ²⁷⁶ For example, the term “rule of law” is vague and its meaning contested, reflecting a degree of indeterminacy. To the extent that actors view the rule of law in terms of legality or as defined by checklists, authoritarians can deploy rule-of-law rhetoric and adapt formal measures in ways that advance authoritarian ends.Footnote ²⁷⁷ International norms, in turn, often reflect compromises that incorporate ideological tensions and contradictions. For example, take the tensions between international law norms for the suppression of terrorism and norms to ensure due process and proportionality. Authoritarian governments can advance one aspect (suppressing terrorism) while ignoring the other (ensuring due process and proportionality).Footnote ²⁷⁸ Relatedly, there will be ongoing tensions concerning the conceptualization of problems, which implicates legal responses. For example, the governing norms of the trade regime are being redefined in national security terms, and they have moved away from concerns about nondiscrimination and fairness toward nonnationals.Footnote ²⁷⁹ Finally, there are always mismatches between those who negotiate and enact international legal norms and those who implement them. Implementing institutions and officials at the state and substate levels shape the law in action.

From the perspective of transnational legal ordering, the question becomes, What are the facilitating circumstances and precipitating conditions that give rise not only to a transnational legal order but also to its decline, including through the formation of rival transnational legal orders?Footnote ²⁸⁰ There have been a number of facilitating circumstances over the last decade, including power shifts, unintended consequences, legitimacy challenges, effectiveness concerns, and a reconceptualization of problems. There has been a shift in global power with the economic and political rise of China and the relative decline of the United States and Europe. These shifts have increased China’s leverage over others while decreasing those of the United States and European Union. China’s economic rise was, in part, an unintended consequence of the legal architecture for economic globalization that the United States had erected. After China joined the WTO, foreign capital invested massively in China, as well as in global supply chains linked to new Chinese manufacturing. This legal architecture also favored transnational capital over domestic labor, since capital was free to invest elsewhere and use that leverage in labor–capital relations. The result was a significant rise in income for capitalists, high-level management, and many professionals, accompanied by stagnant income for most Americans, which drove income inequality to levels not seen in the United States since the 1920s.Footnote ²⁸¹ These developments undercut a sense of the legitimacy and effectiveness of the trade regime. They triggered a growing invocation of national security exceptions that enhance executive power at the expense of legislative and judicial oversight.Footnote ²⁸² They help explain why, paradoxically, the United States (as the incumbent power) and not China (the emerging power) has become revisionist in upending the regime.Footnote ²⁸³

China’s emergence as a regional and global power, and rising concerns about inequality, in turn, catalyzed a shift in the conceptualization of international “problems” within US and European policy circles, spurring a rethinking of international law and institutions’ role. In international economic law, there has been a shift toward a focus on geopolitics, national security, supply chain resiliency, and social inclusion, away from one on economic efficiency, which had been foundational for an international legal system supportive of economic globalization. As a result, national security bureaucracies’ power has risen both in the United States and China at the expense of trade ministries.

These facilitating circumstances create the conditions for precipitating events that implicate rule-of-law practices. For example, the North Atlantic financial crisis of 2008 helped accelerate China’s gains in economic power, called into question the superiority of the US economic model in relation to China’s state-driven alternative, and further contributed to economic precarity for working-class Americans.Footnote ²⁸⁴ The combination of facilitating circumstances and precipitating conditions catalyzed backlash against the international economic order and helped empower populist, economic nationalist leaders within countries.Footnote ²⁸⁵ Ongoing crises could further these trends, including ecological crises driven by climate change,Footnote ²⁸⁶ which, in turn, exacerbate “migration crises” that populist leaders can harness.

Leaders around the globe – from Modi in India, Duterte and then Marcos in the Philippines, Orbán in Hungary, Erdogan in Turkey, and (when in power) Trump in the United States – embrace a populism, which, following Jan Werner Müller, we conceptualize as a combination of anti-elitism and moralized anti-pluralism.Footnote ²⁸⁷ Anti-elitism justifies populist challenges to institutional constraints since institutions – whether they be independent courts, agencies, the civil service, or media – allegedly have been populated and controlled by elites.Footnote ²⁸⁸ A moralized anti-pluralism differentiates the “real people” from others, who tend to be minorities, migrants, and political opponents. Populists cast these “others” as immoral, disloyal, and corrupt.Footnote ²⁸⁹ International institutions and civil society organizations are dismissed and attacked as foreign or “foreign agents.” The exclusionary politics of “Us” (the “real people”) versus “Them” (not “Us”) – with opponents and critics labeled as “enemies of the people” – puts serious strains on rule-of law norms. “For my friends, everything; for my enemies, the law,” becomes the norm.Footnote ²⁹⁰ Populist, nativist parties have shaped public agendas even when they are not elected to power, especially as regards migrants and policing.Footnote ²⁹¹ The global COVID pandemic appears to have further emboldened many national governments to expand their powers relative to civil societyFootnote ²⁹² – a creeping authoritarianism that bodes further ill for rule-of-law protections. Montoya and Ponce show a strong statistical correlation between populist, anti-pluralist platforms and declines in the rule of law.Footnote ²⁹³

The rise of populism and erosion of democracy within countries correlates with increased challenges to international institutions.Footnote ²⁹⁴ For instance, US president Trump drove a populist, nativist agenda in which he undermined US governance norms, expressed admiration for authoritarian leaders and disdain for democratic ones, and sought repeatedly to block the transfer of power, including through pressuring election officials to “find” him enough votes, scheming to create fake, pro-Trump electors, and then rallying an attack on the US capitol, all as part of an attempted coup.Footnote ²⁹⁵ In parallel, in line with his “America First” policies, Trump undercut international institutions and agreements. He withdrew the United States from the Paris Agreement on climate change, the Trans-Pacific Partnership, the Iran nuclear deal, the Open Skies Treaty, the Intermediate Nuclear Forces Treaty, and the Optional Protocol to the Vienna Convention on Diplomatic Relations, and he withdrew US participation in the Global Compact on Migration.Footnote ²⁹⁶ He likewise withdrew, or initiated withdrawal, of the United States from the UN Human Rights Council, the World Health Organization, and the UN Economic, Social, and Cultural Organization (UNESCO), while neutering the World Trade Organization’s dispute settlement system, challenging and threatening to withdraw from NATO and the WTO, and sanctioning the Prosecutor for the International Criminal Court as if she were a terrorist threat.Footnote ²⁹⁷ Similarly, within Europe, authoritarian regimes in Hungary and Poland took advantage of the consensual decision-making processes in the European Union to bring some EU actions to a virtual halt.Footnote ²⁹⁸ More generally, populism has led to reduced references in domestic courts to international law, further limiting international law’s reach, such as its ability to provide normative resources for protecting minorities.Footnote ²⁹⁹

Authoritarian leaders in Russia and China also have moved in totalitarian directions that have implications for international law and the normative resources that it provides. Xi Jinping has clamped down on independent voices in China and is extending his rule well into the future. In parallel, because China is the world’s largest trading nation and provider of development finance, it exercises significant leverage over countries that are dependent on it for trade, investment, and finance to curtail international scrutiny and support of rule-of-law practices, while developing and harnessing international norms, such as those of anti-terrorism, for illiberal ends. Russia further illustrates the enmeshment of national and international developments for the rule of law. Its internal autocratic turn and its war of aggression against Ukraine interrelate. President Putin’s fear of an internal threat to his rule helped spur his war on Ukraine, since Ukraine’s democratization and ties with Europe facilitated the conveyance of liberal norms. In his televised address announcing Russia’s invasion of Ukraine, for example, Putin blamed “the West” for its attack on Russia’s traditional values, including through imposing attitudes that “are contrary to human nature” – referencing the extension of legal rights and cultural acceptance of LGBTQI peoples.Footnote ³⁰⁰ Putin since has used the Ukraine war to shut down independent Russian media and “self-cleanse” Russia of opposition to his rule – labeling opponents “scum and traitors” that should be “spit out like a midge.”Footnote ³⁰¹ One of the fallouts of the Ukraine war is Russia’s departure from the Council of Europe and withdrawal from the European Convention on Human Rights, curtailing the normative resources and international oversight they provide. In the process, Putin has upended European security and the settlement of Europe’s borders.

Overall, the combination and enmeshment of populist, authoritarian trends within states and shifts in global power toward authoritarian states will reshape international law and institutions, which, in turn, could further support authoritarian practices within states. In his foundational work on multilateralism, John Ruggie stressed the importance of a “permissive domestic environment” for multilateral cooperation.Footnote ³⁰² He argued that the “post-World War II situation” reflected “less the fact of American hegemony,” than “of American hegemony.” He maintained, in turn, that “the durability of multilateral arrangements … is also a function of domestic environments.”Footnote ³⁰³ In short, a decline of multilateralism and international promotion of the rule of law will echo changes in the domestic environment of powerful states, including within the United States. To play off the title of Ruggie’s book, transnationalism matters.Footnote ³⁰⁴ It is the interaction of domestic and international factors that give rise to positive and negative cycles for the rule of law.