The International Rule of Law: Law and the Limit of Politics

The international rule of law is often seen as a centerpiece of the modern international order. It is routinely reaffirmed by governments, international organizations, scholars, and activists, who credit it with reducing the recourse to war, preserving human rights, and constraining (albeit imperfectly) the pursuit of state self-interests. It is commonly seen as supplanting coercion and power politics with a framework of mutual interests that is cemented by state consent.

In light of this apparent consensus, my goal here is to understand what the rule of law means for international affairs, both in practice and as a concept. In this essay I examine how it is used by states and others to shape world politics and from that practice derive a definition. Because it is rarely carefully defined and its alternatives are not explained, the international rule of law appears as a charmed concept, essentially without critics or doubters.

I find that, rather than being a universal institution that expresses the shared interests and goals of states, the international rule of law provides political resources with which states and other actors legitimize and delegitimize contending policies. The atomistic nature of the interstate system means that the international version of the concept cannot be modeled on the domestic one, but also that it cannot be reduced simply to the obligation on states to comply with their legal commitments. In practice, the meaning of compliance is the very thing that states are arguing over in many international controversies.

The alternative, then, is to see international law as a set of resources, as tools that governments and others use to explain, legitimate, and understand their policies. This view does not presume a consensus around the meaning of compliance, and yet can account for the pervasive practice of using law to frame and argue over international actions. This is an instrumental view of international law that does not deny the power of international legal rules and institutions; rather, it shows how international law is situated within international politics, as opposed to the more conventional view that sees international law as an alternative to it. To appreciate the political power of international law involves more than just asking questions about who writes the rules and for whose interests. It also means examining how international law is used, what it means, and what it replaces.

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