UC Irvine Journal of International, Transnational, and Comparative Law

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A dozen years ago, Jeremy Waldron published an influential article arguing that sovereign states are not entitled to the benefits of the international rule of law. His conclusion follows from his assertions that the purpose of the rule of law is to protect individual liberty, and the purpose of international law is to protect individuals. This article critically responds to his position. International law is based on the notion that states are autonomous and equal members of the international society ordered through legal relations. The legal relations of the international community of states, I argue, constitute the horizontal dimension of the rule of law, which Waldron overlooked. Focusing on horizontal rule of law functions, I provide descriptive, theoretical, and normative reasons why states are, and should be, entitled to the benefits of the rule of law.

Utilizing the theoretical framework of transnational legal orders (TLOs), this article treats two master questions in global governance: what are the limits to the power of the UN Security Council? Can norms of rule-of-law constrain UNSC powers? First, we outline a research design with emphasis on its documentary and unique internal empirical sources. Second, we sketch an interpretive narrative of UNSC engagement from the early 1990s to the present with ROL in three areas of UNSC action: peacekeeping, sanctions, and force. Third, we offer a new conceptual approach by proposing that ROL in the UNSC manifests itself in three dimensions: discourse; procedure (or rules); and structures. These dimensions come into play both internally, within the UNSC itself, and externally, to ROL institution-building in and between states, as well as in post-conflict zones, with a rather gray area between (e.g., when the UN peacekeeping missions are themselves subject to ROL oversight for the behavior of their personnel). Fourth, we examine the emergence of micro-TLOs under construction within the UNSC itself. We conclude with reflections on the potential for empowering elected members of the UNSC and weaker states in the UN to press ROL norms on the UNSC as a springboard for ROL global governance via the UNSC.

This article analyses widespread constitution-shaping activities by a range of international organizations at different places on the globe. The principles governing the processes and substance of constitution-making—as propagated by the international organisations—have remained similar since 1989: rule of law (or its elements and emanations), human rights, and democracy (or variants and family members such as inclusion, openness, participation, and the like), the so-called constitutionalist trinity. The modalities of constitution-shaping are pre-accession-incentives, conditionalities, indicators, and benchmarking.

The article raises a dual question: First, do we see, in the current era of anti-globalisation, populism, and charges of ostensible obsoleteness of liberalism, a change in the law and practice of the organizations? Have the international organizations in fact given up on the constitutionalist trinity and have they stopped offering assistance? My answer is that this does not (yet) seem to be the case. In other words, despite critique and pushbacks, the language and practice have not changed until the present day.

Second and normatively speaking, is the international organizations’ continued insistence on the constitutionalist trinity a good thing? Should not the traditional constitutional principles be substituted by new ones? Or, alternatively, should not the international organizations abstain from getting involved in the first place? The article examines the effectiveness, the lawfulness, and the legitimacy of international involvement. It concludes that the constitution-shaping activity by international organizations needs to pay much more attention to the implementation of constitutional law and its translation into more specific laws, regulations, and practices in the administration on the ground to be effective. It needs be wary of crossing the threshold to unlawful intervention to remain lawful. And it must absorb post-colonial concerns and needs to pursue a much deeper social agenda with a global ambition, to regain legitimacy. Thus revamped, international organisations’ constitution-shaping role could be re-invigorated. It would thus form one building block of transnational or global constitutionalism and contribute to transnational ordering.

Scholars frequently cite Turkey under Recep Tayyip Erdoğan’s rule among the leading examples of populism and authoritarianism in contemporary politics. Long an authoritarian regime, Turkey has in indeed evolved into a full-blown autocratic regime engaged in serious human rights violations and systemic rule of law violations. What makes this case particularly striking, however, is that this backsliding has occurred under the watch of European institutions. Claiming that the Turkish case speaks to broader issues concerning the ways in which transnational human rights and rule of law organizations interact with authoritarian regimes, this article puts forth theoretical insights for the rule of law scholarship. Going beyond conventional analyses which characterize interactions between international institutions and nation states as one-way relationships where norms flow (or not) from the top-down, it looks into the “enmeshment” of domestic and international law in authoritarian settings described in the introductory article of this special issue. Doing so, however, the article does not solely ask whether and how human rights norms are applied in authoritarian contexts, but also looks into how international organizations tasked with upholding the rule of law can not only permit illiberal states to violate those norms, but also themselves undermine these principles.

Conceptually, the article illustrates that the rule of law-rule by law spectrum fails to account for authoritarian contexts, where states go beyond rule by law to engage in legal repression and resort to lawlessness towards certain (racialized) segments of the population. Thus, it argues, if the rule of law is at one end of the analytical spectrum on the arbitrary exercise of power, what lies at the other end is lawless rule, not rule by law, and the dual state lies somewhere in between. Empirically, the article analyzes Turkey’s decades-long relationship with the European Union and in particular the European Court of Human Rights (ECtHR). It zooms in on the latter’s case law concerning Erdoğan’s resort to the law to consolidate his power (rule by law) and utter disregard of legal rules, including domestic ones, in repressing democratic dissent and engaging in state violence (lawlessness). Methodologically, to display and contest conventional scholarship’s depiction of the ECtHR as a supranational court exercising strict scrutiny of authoritarian regimes, the article goes beyond judgments, which constitute a mere 9 percent of jurisprudence, and takes a close look at inadmissibility decisions and strike-out rulings concerning Turkey’s resort to rule by law and lawlessness.

The rule of law, an abstract concept heavily debated among legal scholars and social scientists, has in the past few decades acquired a nearly universal appeal, as democracies, autocracies, and oligarchies all claim to uphold it. The Chinese government, for instance, announced in 2012 a comprehensive plan to advance law-based governance in China and has since undertaken major legal reforms. Repeatedly, Xi and the leaders of the Chinese Communist Party (“CCP”) have pledged to build a “rule of law country.” But when the ruling elites of a one-party authoritarian state allege commitment to the rule of law, what do they really mean? How is it different from the Western concepts of the rule of law, especially the “thick” version of it, that has been closely tied to liberal democratic values? What are the key features of the “rule of law with Chinese characteristics”? And how will it impact the international legal order? Applying a transnational legal ordering framework, this Article attempts some answers. It proceeds in two sections. Section One traces the development of the Chinese legal system and the evolving rule of law debates in China. Unlike prior research on this topic, which has generally treated the sovereign state as the unit of analysis, this section highlights the power dynamics within the Chinese ruling elites and the influence of the international legal community as well as the global rule of law discourse. Section Two reverses the inquiry and explores how China might impact the international legal order. It contends that varying coalitions of Chinese actors populate the interfaces between China and international law across different issue areas and that China’s impacts on the international legal order vary as well. Both sections will also discuss how the ideological remnants have produced three common, entrenched perceptions of law and legal institutions: legal instrumentalism, economic determinism, and linearity of institutional changes, and how these perceptions have modified China’s interactions with international law.