I Introduction
A decade ago, Jeremy Waldron published an influential article arguing that sovereign states are not entitled to the benefits of the rule of law. Pared to the core, his argument is: (1) “the point of the ROL [rule of law] is to protect individual values like liberty, dignity, etc.”;Footnote 1 (2) “the ‘true’ subjects of IL [international law] are really human individuals (billions of them)”;Footnote 2 (3) in domestic legal systems, government officials and agencies are not entitled to rule-of-law protections like private individuals;Footnote 3 (4) sovereign states should be seen as “officials” or “agents” of the international law system rather than as subjects;Footnote 4 and (5) “then maybe it is inappropriate to think that sovereign states are entitled to the same ROL protections at the international level as individuals are entitled to at the municipal level.”Footnote 5 This narrow construction, I argue in this chapter, is an unwarranted and undesirable theoretical limitation of the benefits of national and international rule of law.
A few words about the current Russian invasion of Ukraine will help set up this argument. Russian president Vladimir Putin justified the invasion as necessary to protect Russian-speaking residents of the Donbas region (who he claims want to be part of Russia) from genocide by Ukraine; he claimed that Ukraine is not a genuine state but a historic part of greater Russia, and that NATO’s expansion into Eastern Europe is a threat to Russia’s security.Footnote 6 The UN General Assembly voted overwhelmingly to condemn Russia’s invasion as a violation of Article 2(4) of the UN Charter prohibiting the use of force against the territorial integrity and political independence of another state.Footnote 7 The first line of the resolution states: “Reaffirming the paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations.”Footnote 8 Ukraine filed a complaint against Russia at the International Court of Justice (ICJ), arguing that Russia falsely claimed Ukraine was committing genocide as a pretext for its invasion. By a vote of 13 to 2 (the dissenting judges were from Russia and China), the ICJ ordered that “[t]he Russian Federation shall immediately suspend the military operations.”Footnote 9 Russia has ignored this order. After holding a “referendum” in areas under its occupation, Putin signed a law annexing nearly 20 percent of Ukrainian territory, proclaiming it part of Russia.Footnote 10 The UN General Assembly rejected this purported annexation as illegal under international law by a vote of 143 to 4 (with 35 abstentions).Footnote 11
Waldron is likely aghast at the murderous and horrifically destructive Russian invasion of Ukraine. Still, those who argue that sovereign states are not subjects entitled to the benefits of the international rule of law should be given pause by this latest reminder of the danger that states pose to one another and their populaces. They should consider why states view actions like this as a violation of the rule of law, and consider whether granting states the benefits of the rule of law has important positive consequences.
On descriptive, theoretical, and normative grounds, I argue that sovereign states, along with all persons and entities, should be regarded as subjects fully entitled to all benefits of international rule of law. Part II elaborates the fundamental international law principle of sovereign autonomy, comprising a nested arrangement that protects both states and individuals. Depicting the rule of law as the ideal of a legally ordered community, Part III shows that the rule of law advances several vertical and horizontal functions – not only individual liberty. Part IV reveals that Waldron overlooked the horizontal rule of law treatment of government within domestic legal systems. Articulating the international rule of law as the ideal of the legal ordering of the international community, Part V argues that sovereign states already are, and should be, entitled to the benefits of the international rule of law. Part VI closes the chapter with brief comments about how this understanding is well suited to addressing the emerging transnational legal order. In the course of this critical engagement with Waldron’s position, I lay out a broad understanding of the rule of law that applies within states and the international community.
II International Law’s Nested Dualism of States and Individuals
“The real purpose of IL and, in my view, of the ROL in the international realm is not the protection of sovereign states but the protection of the populations committed to their charge,”Footnote 12 Waldron asserts. This stance, however, tends to erase the pivotal role international law accords to states, protecting state autonomy as well as individuals in a nested arrangement.Footnote 13 Respect for state sovereignty, noninterference, and sovereign equality are fundamental principles of international law that enable states to serve their responsibilities to their populations. Primary responsibility for the protection of individuals in this arrangement is accorded to the nation-state, while direct protection for individuals under international law is largely limited to human rights.
This nested arrangement has long been a staple of international law. Samuel Pufendorf articulated a view variously expressed by many theorists in the past four centuries during the consolidation of the state system: “[T]he over-riding purpose of states is that, by mutual cooperation and assistance, men may be safe from the losses and injuries which they may and often do inflict on each other.”Footnote 14 Emer de Vattel, an influential early international law writer, similarly held that nations are “societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength.”Footnote 15 The duty of the state is to ensure the safety and welfare of the populace.Footnote 16 “States are now widely understood to be instruments at the service of their peoples, and not vice versa,” observed UN secretary-general Kofi Annan.Footnote 17
Sovereign states discharge this duty through the right and power to act on behalf of their populace both internally and externally. “It is an evident consequence of the liberty and independence of nations, that all have a right to be governed as they think proper, and that no state has the smallest right to interfere with the government of another,” Vattel observed.Footnote 18 “The sovereign is he to whom the nation has entrusted the empire and the care of the government,” he continued. “It does not then belong to any foreign power to take cognizance of the administration of that sovereign, to set himself up for a judge of his conduct, and to oblige him to alter it.”Footnote 19 Immanuel Kant’s fifth article for peace among nations declares: “No state shall violently interfere with the constitution and administration of another.”Footnote 20 Article 2(4) of the UN Charter codifies this position: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Consistent with this position, the ICJ asserted: “Every State possesses a fundamental right to choose and implement its own political, economic and social systems.”Footnote 21
The right of sovereign states to noninterference is upheld, not out of a naive faith in states or misplaced dedication to sovereignty as an abstract notion, but because it serves several crucial purposes. A major impetus in the development of international law was to diminish incessant wars in Europe and the carnage they wrought on civilian populations. Wars of aggression occur when a state (or coalition of states) seeks to expand its territory or access to resources by conquering or absorbing or controlling another state or its territory; and also when a governing regime feels its internal hold on power is threatened by rising internal discontent or by aggression from another state, which it attacks to rally the populace and to reduce the perceived external threat. Respect for sovereignty and noninterference protects individuals by dampening wars.
Nonetheless, many international law scholars (particularly from Western societies) disfavor sovereigntyFootnote 22 – a shield behind which states all too often abuse their own citizens – and insist that the primary objective of international law is to protect individuals. Carmen Pavel argues that state autonomy has no intrinsic value of its own: “State autonomy is valuable to the extent it protects individual autonomy.”Footnote 23 This position links state sovereignty to a deeper ultimate purpose that provides a critical standard and justification for outsiders coercively penetrating state autonomy when necessary to protect citizens from bad actions by their own governing regime.
Owing to conflicting interests, mutual distrust, nationalist sentiments, global pluralism of values, and the prioritization of peace, however, it is not acceptable to penetrate state sovereignty for other than the most blatant violations of human rights. States are not in a position to determine in an unbiased way – one not colored by their own interests and values – whether or when other states are in fact serving or harming their citizens. The leaders of every state are skeptical and critical of the actions of other states (including allies), while at the same time they reject criticisms from others of their own conduct. Officials in the United States, Germany, and Japan, no less than officials in Russia and China, and every other country, insist that they, and they alone, are in the best position to recognize and advance the interests of their populace. All states legislate morality, set up economic and political systems, specify the status of religion, impose criminal law and taxation, create and utilize coercive policing, restrict political opposition within certain parameters, and limit protests by citizens, in certain states suppressing the press (through criminal or civil sanctions) or using brutal crackdowns in the name of maintaining public security and order. In these and other matters states make choices and take actions that other states do differently. Self-determination and political and moral pluralism – which give rise to contrasting views of substantive justice and the common good within societies – are moral considerations that underlie sovereign autonomy.Footnote 24 Finally, coercively penetrating sovereignty may provoke a violent backlash by the governing regime, leading to further abuses and possibly outright war.
State sovereignty and noninterference have become entrenched in the primary international law principle of sovereign equality: all states must be treated equally in their capacity to act on behalf of their respective populations (self-determination) and all states enjoy the same legal rights as sovereigns within international law.Footnote 25 What sovereign equality means, Arthur Watts wrote, “is that since all States are sovereign, they are thus neither subject to any external authority nor themselves possessors of authority or pre-eminence over other States, and are accordingly in those respects in principle legally equal with one another as members of the international community.”Footnote 26 Sovereign equality is especially necessary to protect weak states against the coercive intrusions of powerful states.Footnote 27 The 2012 declaration of the high-level meeting of the UN General Assembly on the rule of law emphasized: “We rededicate ourselves to support all efforts to uphold the sovereign equality of all states, to respect their territorial integrity and political independence … .”Footnote 28 A country-by-country study by Noora Arajarvi found that nonaligned countries (120 in total) collectively and individually have “consistently demanded that the international rule of law must be anchored in the principle of sovereign equality.”Footnote 29
Russia and China have affirmed the principle of “sovereign equality,” which includes that “[s]tates enjoy their rights on the basis of independence and on an equal footing” along with “the principle of non-intervention in the internal or external affairs of States.”Footnote 30 A joint statement they issued three weeks before Russia’s invasion of Ukraine states:
The sides [Russia and China] believe that the advocacy of democracy and human rights must not be used to put pressure on other countries. They oppose the abuse of democratic values and interference in the internal affairs of sovereign states under the pretext of protecting democracy and human rights, and any attempts to incite divisions and confrontation in the world. The sides call on the international community to respect cultural and civilizational diversity and the rights of peoples of different countries to self-determination.
The sides [Russia and China] note that the Charter of the United Nations and the Universal Declaration of Human Rights set noble goals in the area of universal human rights, set forth fundamental principles, which all the States must comply with and observe in deeds. At the same time, as every nation has its own unique national features, history, culture, social system and level of social and economic development, universal nature of human rights should be seen through the prism of the real situation in every particular country, and human rights should be protected in accordance with the specific situation in each country and the needs of its population.Footnote 31
Significantly, Russia and China affirm their commitment to international law and human rights, as well as their obligation to serve their populace; they also support democracy, tailored to the conditions of each society. Russia contends that its conduct in Ukraine is justified under international law, as described at the outset. On its treatment of Uyghurs, which has received international condemnation, China denies that it has mass imprisonment camps and insists that the Uyghurs who have been detained have engaged in terroristic acts. Their joint statement contends that foreign critics are imposing their own values and agenda, failing to respect the unique cultural, social, economic, political, and legal circumstances of Russia and China.
Skepticism about Western motives has ample grounds. Many examples of uses and abuses of international law by Western countries to bludgeon other societies can be cited, from Western colonization of large parts of the globe, to the United States invasion of Iraq to topple Saddam Hussein, to torture of detainees by the Bush administration.Footnote 32 The Chinese no doubt recall the Opium War, in which Britain seized control of Hong Kong and, in the name of international law and free trade, forced China to allow in opium brought by the British East India Company.Footnote 33 International law was born of European notions and practices that were applied as standards to adjudge other nations.Footnote 34 As Terry Nardin describes, this “generated a bifurcated international order: an egalitarian horizontal international law for relations between European states and a hierarchical imperial law for relations between European and non-European peoples.”Footnote 35 International lawyers may insist (exasperatedly) that this is all in the past and not relevant today, but the invasion of Iraq is a recent event, not to mention ongoing US drone strikes in other nations without their permission.Footnote 36 In an article on the international rule of law, James Crawford, a prominent international lawyer who subsequently served on the ICJ, wryly commented: “The United States these days appears to apply the policy: international law for others and not for itself.”Footnote 37
Past and present illegal actions by Western states, of course, do not absolve Russia and China of their own violations of international law. States regularly make factual claims and offer legal justifications for their actions that are not true or not consistent with international law. The factual premises of the US invasion of Iraq were false, and its overthrow of the government and subsequent occupation violated Iraq’s sovereignty, resulting in the deaths of several hundred thousand Iraqi civilians from war-related causes.Footnote 38 Russia’s invasion and attempted annexation of eastern and southern Ukraine patently violates the territorial integrity of Ukraine, and its deliberate attacks on civilians are war crimes;Footnote 39 and strong evidence has been compiled that China is violating the human rights of Uyghurs.Footnote 40
The point of this discussion is that, owing to well-founded concerns about wars, conflicting interests, a mutual lack of trust, nationalism, contrasting political and moral values, and the depredations of powerful states on weak states, international law constructs a nested dual arrangement in which states have the primary duty to protect their populace and are shielded from coercive foreign interference in their treatment of their own citizens (except when this treatment rises to the level of flagrant and extreme human rights violations, and even then with great reluctance). This arrangement gives a state regime great scope to harm its populace – a sadly common occurrence but no other approach is currently viable. For these reasons, the preservation of state autonomy within a community of states is a direct objective of international law, even as it strives to protect individuals.
Waldron may be correct that “ultimately, international law is oriented to the well-being of human individuals, rather than the freedom of states.”Footnote 41 But international law serves this goal via protections for state autonomy and equal sovereignty to act on behalf of citizens. Protections for state sovereigns, I argue below, are and should be included within the benefits of the international rule of law for the good of individuals in societies around the world.
III Horizontal and Vertical Functions of the Rule of Law
Disagreement over what the rule of law means and its defining features, requirements, and purposes is endemic.Footnote 42 Even greater disagreement exists over the rule of law in the international context – including doubts about whether the rule of law applies beyond the nation-state.Footnote 43 Given this pervasive state of disagreement, declarations about the rule of law should be taken, not as generally agreed-upon descriptive or conceptual claims, but as arguments offered by theorists to persuade others about how the rule of law should be understood.
When evaluating these arguments, one must be wary of shifts from conditional assertions to unconditional assertions. Early in his essay, Waldron states: “We usually say that the point of the ROL is to protect individual values like liberty, dignity etc.”Footnote 44 (“Usually” is a conditional assertion.) It is true that many theorists highlight liberty and dignity – Waldron calls it “Hayekian freedom”Footnote 45 – though there is no consensus that this is the point. Later in the essay, Waldron puts it in stronger terms: “[T]he whole point of the ROL is to secure individual freedom … . To eliminate uncertainty in the interests of freedom and to furnish an environment conducive to the exercise of individual autonomy – that is the raison d’etre of the ROL.”Footnote 46 But this statement is too unequivocal for a concept that Waldron himself famously called “essentially contested.”Footnote 47 And this assertion carries much of his argument. Once he identifies the point of the rule of law as advancing individual autonomy, and the purpose of international law as being to protect individuals, it all but follows that states are not entitled to the benefits of international rule of law – since states are not individuals and, Waldron emphasizes, “are not the bearers of ultimate value.”Footnote 48
Martin Krygier, another influential rule-of-law theorist, recognizes that “many problems have been identified for the rule of law to solve.”Footnote 49 “And in truth, all sorts of goods are today claimed to flow from it – e.g., economic development, human rights, and democracy.”Footnote 50 While rule of law is linked to various benefits and solutions to various problems, he writes: “Rule of law traditions have particularly focused on arbitrary exercise of power, often using precisely that word, as the antihero in the rule of law story.”Footnote 51 Krygier identifies the telos of the rule of law as restraining the arbitrary exercise of power, and he analyzes various implications of seeing the rule of law in terms of this end.Footnote 52
Presenting the rule of law in terms of a singular purpose or point or end is problematic for several reasons. To start with, various purposes have been identified by theorists, including Waldron and Krygier, who correctly assert that theories about the rule of law have often referred to the (different) purpose each highlights. But centering on liberty produces different emphases and implications for the rule of law than centering on restraining the arbitrary exercise of power. Why pick one as the end when both have been identified for sound reasons? Furthermore, the assertion that the rule of law serves a specific purpose (telos) that explains its existence (raison d’etre) fits uneasily with how the rule of law has come about. The rule of law (whatever it means) was not designed or created by anyone for a particular purpose, but rather evolved over centuries owing to a confluence of beliefs, motivations, circumstances, and institutional developments in connection with cultural, religious, economic, political, legal, and other factors.Footnote 53 Every rule-of-law society has a unique history, institutional arrangement, and set of consequences. Assertions about the purpose is a projection by given theorists based on their particular priorities. For instance, consistent with his liberal commitment to economic liberty and his antagonism to the social welfare state, Hayek proclaimed that the rule of law is about individual freedom.Footnote 54 Another objection to claims about the purpose or point is that that social institutions commonly have multiple uses and do various things, so selecting one downplays or obscures others that may also be significant. Encompassing various functions provides a fuller understanding and appreciation of the rule of law at the national and international levels. In a study of historical and conceptual discussions of the rule of law, Richard Fallon gleans three purposes: “to protect against anarchy and establish a scheme of public order, to allow people to plan their affairs with advance knowledge of the legal consequences, and to protect against at least some types of official arbitrariness.”Footnote 55
Rather than project a single purpose, let us instead focus on function, understood in terms of what the rule of law does (its effects). Bypassing the theoretical impasse over definition and elements, my starting point is a basic proposition about when the rule of law exists: the rule of law exists in a society when government officials and legal subjects are bound by and abide by law. “Legal subject” includes people as well as entities with legal personality (i.e., corporations, organizations, states, etc.) that engage in actions addressed by the law. The rule of law, then, is an ideal that strives to achieve an effective legal ordering within a community. As I show, this conception of the rule of law applies within states as well as at the international level.
This formulation does not reduce the rule of law to simply following the law. It is the ideal of a legally ordered community. Law does not address all actions and no society is completely legally ordered – matters not regulated by law always exist and legal violations always occur. This ideal is actualized as a matter of degree; its degree of achievement varies across locations as well as across areas of legal regulation (economic transactions, criminal conduct, government actions, etc.); and it is achieved to a greater extent in rule-of-law societies than at the international level.
Now let me summarily identify five major functions of an effective legal ordering within a community grounded in the ideal of universally binding law (others functions may exist as well).Footnote 56 The first two functions, as Waldon and Krygier respectively assert, is that the rule of law enhances individual freedom and dignity, and restrains the arbitrary exercise of power.Footnote 57 A third crucial function the rule of law provides is overall security and trust that one is protected from intentional and negligent injuries by others, that one’s property is protected, that economic exchanges will be effective, that the government will carry out its duties, and so forth, allowing actors to rely upon the presence of legal rules and institutions that protect, enable, and stand behind their activities in case something goes wrong.Footnote 58 A fourth function is that rule of law in modern society gives rise to (constructs or constitutes) a multitude of institutions and relationships in society – from the creation of corporations, to property ownership and contractual relations, to business transactions, to employment relations, to the creation and operation of government and private organizations, and vastly more. Fifth, drawing on the preceding functions, the rule of law enhances economic development.
All five functions matter greatly. Personal liberty is important, to be sure, but theorists inclined to prioritize individual liberty among these various benefits should recognize that not all cultures and circumstances share this priority, nor is it obviously the most fundamental. Protection from arbitrary government power is essential, though other threats and concerns exist. If a pervasive lack of security and trust prevails, social interaction would be limited and productive activities would freeze. Large scale societies function vastly more effectively thanks to the constitutive power of law. Economic development provides basics like food, water, clothes, shelter, sanitation, medical care, and education, which are prerequisites to exercising freedom.
For the purposes of analysis, it is useful to subdivide these functions into two perspectives on the rule of law: vertical and horizontal. The vertical perspective emphasizes coercive government treatment of citizens, whereas the horizontal perspective emphasizes actions and intercourse within society. The first two functions identified above – enhancing liberty and restraining arbitrary power – are based on the vertical perspective, derived from liberalism’s concerns about government tyranny and individual liberty.Footnote 59 The other three functions – bringing security and trust, constituting relations and institutions, and enhancing economic development – are based on the horizontal perspective that encompasses the benefits of the rule of law within society generally.Footnote 60 The horizontal benefits of the rule of law are enjoyed by all actors within society, including the state, and, as explained shortly, they have particular relevance to the international rule of law.
IV What Waldron Overlooked When Excluding Sovereigns
Waldron’s argument that states are not subjects entitled to the benefit of the rule of law is sophisticated and lengthy, so only a summary of his core points can be provided here. As mentioned, he identifies the purpose of the rule of law as enhancing individual freedom, and the purpose of international law as protecting individuals.Footnote 61 He points out that since the rule of law is about placing legal restraints on government in furtherance of individual liberty, its primary thrust is to constrain the liberty of government. “Governmental freedom is not the raison d’etre of the ROL.”Footnote 62 Waldron challenges the conventional analogy between states in the international community under international law and the position of individuals within society under domestic law. This analogy is misleading, he contends, for “it must be understood that the state is not just a subject of international law; it is additionally both a source and an official of international law.”Footnote 63 So “regulating a sovereign state in international law is more like regulating a law-maker in municipal law than like regulating a private individual.”Footnote 64 Sovereign states at the international level have the same potential for governmental abuse that the domestic rule of law guards against.Footnote 65
The governmental character of the nation-state does not evaporate when we move up a level to the international realm. It remains a governmental entity the dangerousness of which continues to generate ROL concerns. We may also have ROL concerns about IL and international institutions apart from nation-states, but most of those ROL concerns will be motivated by our interest in the well-being, liberty, and dignity of natural human individuals, who are vulnerable directly or indirectly to IL in various ways, not by our interest in the freedom of action of natural sovereigns.Footnote 66
It follows, therefore, that sovereigns are not entitled to the benefits of the rule of law.
A notable feature of Waldron’s analysis is the determinative weight he places on the domestic rule of law in his analysis of the international rule of law. He does not seriously contemplate whether or how the rule of law in such different arenas can be understood on their own terms.Footnote 67 Before suggesting an alternative starting point for the international rule of law in Part V, this discussion identifies an aspect of domestic rule of law that Waldron overlooked, tied to the horizontal benefits of the rule of law identified above.
Waldron overlooks that a comparable coexistence of official capacity and legal subject also holds in the national context: government entities operate in public roles while exercising rights as legal subjects in their various activities. At the domestic level, recognition that government officials are limited by law, as the rule of law holds, does not diminish or detract from the benefits the government obtains through the rule of law in its activities like any other actor within a legally ordered society. To put this point in terms of the preceding discussion, Waldron’s conception of government in the national context was limited to the vertical dimension of the rule of law that emphasizes legal limits on government actions against the populace, but he ignored the horizontal dimension of the rule of law in which government benefits from the rule of law. Within domestic legal systems, the horizontal dimension operates vis-à-vis private actors (people and entities), and vis-à-vis other government entities.
In its interaction with private actors, the government itself relies heavily on, and benefits from, a legally bound order because many of its daily activities are legally constituted and arranged. Think of government contracts with employees, suppliers of goods and services, banks for loans and bond issues, landlords for rental property rented for government use, and in other ways, utilizing law in its undertakings; ordinary tort law, property law, and criminal law also apply to and protect governmental activities and assets. The government benefits from the predictability, certainty, security, trust, and constitutive aspects achieved by an effective legal order. In myriad contexts when carrying out its public role, the government holds, utilizes, and exercises the same legal status and rights as all actors in society.
Governments also rely on and benefit from the legal ordering in their relations with other governmental entities in the furtherance of their public responsibilities. In the United States, individual states have sued other states on a variety of matters, including boundary disputes, distribution of water rights from shared rivers, harm from pollution, contract claims, acquisition of property from people who die without heirs, disputes over domicile for tax purposes.Footnote 68 Individual states have also brought suits against the federal government as well as against federal agencies in support of “the State’s sovereign interest in the continued enforceability of state law.”Footnote 69 And the United States has sued states on a variety of federal matters.Footnote 70
Consider the situation as a coexisting bifurcation of governmental roles. In domestic rule-of-law systems, on the one hand, government officials are subject to legal restraints in their actions directed at citizens and entities (vertical dimension), and, on the other hand, governments are legal subjects with enforceable powers and rights like all actors (private and public) within a legally ordered community (horizontal dimension). The fact that we want government to be limited by law does not erase the fact that the government has rights as a legal subject entitled to equal treatment under law, to predictability and certainty, to the application of public, prospective rules, to an unbiased judge, and to all other aspects of the rule of law. Which aspect of this bifurcation matters in a given instance depends on what is at issue in that situation. This same coexisting bifurcation holds in the international arena.
V Why International Rule of Law Does Benefit Sovereigns
A great deal of sophisticated theoretical analysis has been written on the international rule of law. Disagreement prevails. Every account of the rule of law – including the one I sketch here – is proffered by theorists in the conviction that their particular articulation is descriptively, theoretically, and/or normatively useful. Remember that political and legal theorists do not have exclusive or final authority over what the rule of law means. Many theoretical analyses are grounded on what theorists (Dicey, Hayek, Raz, Waldron, and others) have said about the rule of law, but it is an ideal shaped by how people collectively understand the rule of law. When states and other international actors repeatedly express their desire for and commitment to an international rule of law, it makes sense to try to discern what they mean by this, and in what sense it is achievable and desirable.
Waldron’s position is substantially weakened by the fact that it contradicts past and recent pronouncements about the rule of law by actors on the international level, and is inconsistent with international law treatment of states. The UN General Assembly condemned Russia’s aggression against Ukraine as a breach of “the rule of law among nations,” in contravention of international law prohibitions against “the threat or use of force against the territorial integrity or political independence of any state.”Footnote 71 The clear import of these statements is that Ukraine – in its status as sovereign state – is entitled to the benefits of the rule of law.
The unanimously adopted 2012 Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels expressed agreement in being “guided by the rule of law, as it is the foundation of friendly and equitable relations between States and the basis on which just and fair societies are built.”Footnote 72 Paragraph 2 specifies who is subject to, as well as benefits from, the rule of law:
We recognize that the rule of law applies to all States equally, and to international organizations, including the United Nations and its principal organs, and that respect for and promotion of the rule of law and justice should guide all of their activities and accord predictability and legitimacy to their actions. We also recognize that all persons, institutions and entities, public and private, including the State itself, are accountable to just, fair and equitable laws and are entitled without any discrimination to equal protection of the law.Footnote 73
Subsequent paragraphs reaffirm a commitment, consistent with the rule of law, to “all efforts to uphold sovereign equality of all States”;Footnote 74 to respect for “territorial integrity and political independence”;Footnote 75 to “non-interference in the internal affairs of states”;Footnote 76 to refraining from the use of force against other states;Footnote 77 to the duty to peacefully settle disputes;Footnote 78 to the universal value of human rights and democracy;Footnote 79 to the belief that “the rule of law and development are strongly interrelated and mutually reinforcing” and necessary to eradicate poverty;Footnote 80 to recognizing “fair, stable and predictable legal frameworks” as necessary for international trade;Footnote 81 to the importance of international cooperation in combating transnational criminal networks (trafficking in drugs, money laundering, arms, people, terrorism);Footnote 82 and much more.
Three seminal points about the international rule of law stand out from these passages. First, they portray the rule of law as the basis for friendly and equitable relations among the international community of states. That is consistent with my characterization of the rule of law as an ideal that strives to achieve an effective legal ordering within a community. Second, they state that all persons and entities in the international arena, explicitly including the state, are bound by law and also entitled to the protection of law. Under this formulation, the state is not treated differently from any other person or entity within the community, which is consistent with my earlier description of legal “subject” as covering both people and entities with legal personality (corporations, organizations, states, etc.) that engage in actions addressed by the law. Third, consistent with the expressed desire for friendly and equitable relations within the international community, the bulk of matters mentioned relate to the horizontal dimension of the rule of law. The passages emphasize respecting sovereignty in order to generate mutual security and trust, creating certainty and predictability for economic exchanges and development, and cooperating to fight crime and terrorism and control money flows – all of which are about the benefits of the rule of law to nations and international society. This account encompasses a number of rule-of-law benefits beyond enhancing individual freedom.
In fairness to Waldron, the Declaration was issued a year after his article, but this perspective on the international rule of law is not a recent development. Under the heading “Rule of Law,” the 2005 UN World Summit Outcome stated:
Recognizing the need for universal adherence to and implementation of the rule of law at both the national and international levels, we:
(a) Reaffirm our commitment to the purposes and principles of the Charter and international law and to an international order based on the rule of law and international law, which is essential for peaceful coexistence and cooperation among States.Footnote 83
Again, the rule of law is presented as the (horizontal) ordering of the community of states under international law. In 1970, a UN Declaration on Principles of International Law adopted by the General Assembly cited “the paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations.”Footnote 84 Commenting on this and similar statements, three decades ago, Arthur Watts observed that the international rule of law must be understood as “legal ordering of affairs within [the international] community.”Footnote 85
“International society is a society of states; international law seeks to achieve the goals and values of that society; it does so primarily by regulating states,” Anne-Marie Slaughter declared.Footnote 86 The vision of international law as a society of states subject to legal regulations matches Kant’s celebrated outline of the conditions for perpetual peace:
Nations, as states, may be judged like individuals who, living in the natural state of society – that is to say, uncontrolled by external law – injure one another through their very proximity. Every state, for the sake of its own security, may – and ought to – demand that its neighbour should submit itself to conditions, similar to those of civil society where the right of every individual is guaranteed.
…
For states, in their relation to one another, there can be, according to reason, no other way of advancing from that lawless condition which unceasing war implies, than by giving up their savage lawless freedom, just as individual men have done, and yielding to the coercion of public laws.Footnote 87
In an article on international rule of law, Terry Nardin recognizes that “states can be subjects of law – ‘legal persons’ with rights and duties under international law. International law makes that assumption by treating states as artificial persons who associate, like citizens, on the basis of law.”Footnote 88 The international rule-of-law ideal entails a legally ordered international community of states and other actors.
Waldron argues that it is wrong to see the international community of states as analogous to individuals within society.Footnote 89 But this analogy is ingrained within international law, and it is an apt depiction of the international situation. Interpersonal violence and abuse of power within society – say, when a powerful person or gang attacks a weaker person to injure them and seize their assets – is directly analogous to when a strong state or coalition attacks or seizes the territory of a weaker state. Both contexts involve the lawless, violent, arbitrary abuse of power, antithetical to the (horizontal) rule of law. When a few states are militarily and economically strong, while many states are weak, Arthur Watts wrote, only through international legal ordering “can the conditions be established for increased prosperity and security, whether of individual States or of the international community as a whole.”Footnote 90
Russia illegally and arbitrarily utilized its superior military might against the government, territory, and citizens of Ukraine, killing and maiming people and causing millions to flee, disrupting the functioning of government, destroying their collective security, trust, and economy. The United States also inflicted grievous harm on the state and populace when it illegally invaded Iraq. The respective actions of Russia and the United States, in turn, had severe regional and global consequences that harmed people in many societies around the globe. To vindicate their sovereign equality and repair their governments and the lives of their people, Ukraine and Iraq should be entitled to access legal tribunals and remedies for these violations of international law. The geopolitical reality that great powers cannot be forced to acknowledge and rectify their illegal wrongdoings does not mean international law is weak or not law – no legal system successfully holds all law violators (particularly powerful ones) accountable. Rather, their lawless conduct is exposed as all the more reprehensible by its very abuse of power, flouting the rule of law of international ordering with devastating consequences, while shamelessly claiming legal justifications for their actions.
There are multiple examples, beyond wars and invasions, where international law secures the benefits of the rule of law for sovereign states and their populace. Treaties and international agreements between states cover trade, aviation, communications, intellectual property, climate change, and numerous other matters. International and transnational laws and regulations combat illegal drug trade and terrorism, secure borders, manage cross-border financial flows, limit nuclear weapons and waste, biohazards, and so forth.
It is true that sovereign states act as officials and agencies with the power to create law at the international level, as Waldron points out, but they are also legal subjects with enforceable legal rights and powers. Only states can bring cases before the ICJ for violations of international law, and only states can file complaints with the World Trade Organization’s Dispute Settlement Body against other states for violating trade agreements. The vast majority of cases at the International Tribunal of the Law of the Sea involve conflicts between states over violations of national maritime rights. European nations have brought actions in the European Court of Justice against another European nation for breach of EU law.Footnote 91 Sovereign states also have enforceable rights in the courts of other nations that provide for such suits. For instance, foreign states have filed over 300 suits in US courts against private parties as well as government defendants, raising commercial claims, treaty violations, and other legal claims.Footnote 92 In many of these suits the sovereign state is defending its own powers and rights (the state’s trade agreement, the state’s territory, the state’s maritime border, etc.), while in others it is acting to vindicate the rights and interests of its citizens or private companies.
The common treatment of sovereign states as legal subjects with enforceable rights in both national and international contexts requires Waldron to draw a tenuous line: although states are subjects with enforceable legal rights, nonetheless they are not beneficiaries of the rule of law. This stance works only if one accepts that the only benefit of the rule of law is individual freedom and only the vertical dimension of the rule of law matters.
It is plain, however, that legal principles, rules, and regulations at the international level constitute relations and institutions, and provide and enhance certainty, predictability, security, trust, and economic development within the international community, which are important benefits of the rule of law. These benefits accrue to all legal subjects with rights and obligations, including individuals, corporations, international organizations and agencies, sovereign states, and other entities in the international arena, consistent with the 2012 Declaration’s affirmation that sovereign states (like all other entities) are “without discrimination entitled to equal protection of the law.”Footnote 93
In debates about how the rule of law should be understood, one must consider whether particular accounts are descriptively apt, theoretically sound, and normatively beneficial – the latter considering whether desirable consequences follow therefrom. The ideal of an international rule of law as the basis for the legal ordering of friendly and equitable relations that benefits individuals, states, and all other legal subjects, fits international law principles and matches the expressed understanding and desires of international actors. It is a theoretically sound way of seeing the benefits of the rule of law in holistic terms within a legally ordered society. As a pragmatic matter, furthermore, states will see it as being in their self-interest to commit to the international rule of law if they stand to benefit therefrom, which will help bring about a more effective legal ordering. Ian Hurd remarks: “The international rule of law refers to the intellectual and political commitment … to the idea that all state behaviour should conform to whatever international legal obligations relate to it and that the result of executing this commitment faithfully is a well-ordered international space.”Footnote 94 Individuals around the globe – and every sovereign state – would be better off if this ideal was substantially realized at the international level.
VI The Emerging Transnational Legal Ordering
The discussion thus far has been framed in terms of the international rule of law – with an emphasis on international law, to comport with Waldron’s framework – but my analysis applies more generally to the emerging transnational legal ordering of the international community.Footnote 95 Transnational legal ordering encompasses all forms of law and regulation that address matters between and across states, a great deal of which is outside of international law proper. This includes local, national, and international law and regulations and it involves public and private actors, organizations, and tribunals. It addresses cross-border matters like trade in goods and services; migration; money flows and banking; pollution control and environmental regulation; regulation and taxation of multinational corporations; shipping, rail, and air travel; telecommunications and the internet; terrorism; global health matters like pandemics; intellectual property; and much more. Much of this regulatory activity has been prompted by the expansion and intensification of capitalism around the globe and technological advances in telecommunications and transportation. All nations are now mutually intertwined in multiple ways with other nations that require coordination and regulation. This ongoing proliferation of law and regulatory regimes and institutions constitutes an extension and thickening of legal ordering in connection with activities and consequences that cross state borders. Absent world-devastating man-made or natural catastrophes – looming possibilities in an age of nuclear weapons and rapid global warming – the extension and thickening of law addressing these matters appears likely to continue.
A substantial portion of intercourse between and across nations involves commercial activities, which have beneficial consequences beyond merely economic ones. Montesquieu observed over two-and-a-half centuries ago: “The natural effect of commerce is to lead to peace. Two nations that trade with each other are reciprocally dependent.”Footnote 96 (Think of China and the United States today.) Kant made the same point: “The commercial spirit cannot co-exist with war, and sooner or later it takes possession of every nation.”Footnote 97 Commerce at a distance is facilitated by legal rules, regulations, and tribunals.Footnote 98 The European Union is a nonpareil, economically based transnational legal ordering built on the ideal of the rule of law. National, bilateral, regional, and global regulatory regimes dealing with transnational economic activities (not to mention private elements like arbitration, model contract terms, commercial usages, and so forth) are abundant and increasing.Footnote 99 One commentator on transnational economic law estimated that “90 percent of international law work is in reality international economic law in some form or another.”Footnote 100
Many actors operate within and utilize the transnational legal ordering of the international community: individuals, municipalities, state agencies, private corporations, public corporations, NGOs, regional and international organizations (United Nations, World Trade Organization, World Bank, International Monetary Fund, and a multitude more), sovereign states, and others. Rule-of-law theorists who emphasize individual freedom and preventing governmental abuse of power should bear in mind that states are not the only actors who pose dangers to individuals. International organizations like the UN Security Council and the World Bank have enormous power; transnational corporations rival states in wealth and influence;Footnote 101 and both have the capacities to coerce states (particularly weak states) and harm their populaces. Seeing the rule of law as an ideal of effective legal ordering within, between, and across nations in the international community that restrains and benefits all actors provides the most adequate way to address the global situation.
Let me close with a note of optimism, albeit not easy to hold on to with so many dire events occurring in the world today. Over centuries of gradual development, the rule of law emerged within societies that embraced the rule-of-law ideal that everyone – people and corporate entities, rich and poor, government officials, monarchs – is bound by and should abide by law. Indications of this ideal taking hold on the international level are evident, at least in word if not always in deed. Keep in mind that when the domestic rule of law developed, sovereigns routinely swore oaths to abide by the law, which they nonetheless violated when it suited their interests, although they endeavored to justify their actions as consistent with law. This pattern of conduct is being repeated on the international level today, as sovereign states, transnational corporations, international organizations, and everyone else, increasingly claim to uphold the rule of law. The universal avowal of this ideal is a necessary step on the path to achieving the national and international rule of law, though there is a long way to go.
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