Utilizing the theoretical framework of transnational legal orders (TLOs), this chapter treats two master questions in global governance: What are the limits to the power of the UN Security Council? Can rule-of-law (ROL) norms 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, in 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.

The rule of law is considered an essential element to guarantee the development of modern societies. Despite this and the democratizing waves that emerged after the Cold War, in recent years the world seems to have entered a stage of institutional stagnation, democratic erosion, and, more broadly, a rule-of-law backsliding at the transnational level. In this chapter, we present evidence of the deterioration of the rule of law at the transnational level and on how this phenomenon has come about. To do so, we use data from the WJP Rule of Law Index produced by the World Justice Project covering more than 100 countries for the period 2015 to 2022. We find that the rule of law has deteriorated in recent years around the world. This trend, however, masks variation in different indicators. Using cluster analysis of the change over time in the main indicators of the Index, we identify three groups of countries. The first is composed of countries that have experienced a deterioration in all indicators, but most notably in those measuring limits to state power, open government, and respect for human rights. The second group is composed of countries where overall rule-of-law trends have declined slightly. These countries have also experienced considerable decline in the indicators measuring limits to state power and respect for human rights, albeit of lesser magnitude. The third group is composed of countries where most indicators show slight improvements. These results suggest that the deterioration in the rule of law has been driven by the weakening of limits to state power. In contrast, except in those cases that have experienced a sharp decline, the weakening of the rule of law has not been driven by an acute deterioration in the application or enforcement of the law or in access to justice. We also find that the weakening of the rule of law appears to be associated, in part, with an increase in the authoritarian tendencies of already authoritarian regimes and, in part, with the rise of anti-pluralist and populist leaders.

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 chapter 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. 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.

This chapter reflects upon findings of this book, from the perspective of two central distinguishing themes. First, it endorses and explores the implications of understanding the rule of law in terms of a central aspiration or goal – reduction of the possibilities of arbitrary exercise of power – rather than any purported checklist of legal instruments said to embody it. Second, it discusses the distinctive implications of examining the rule of law in a transnational, not merely national, context. Part III examines the geopolitical sources of transnational enthusiasms for the rule of law, and the implications of geopolitical changes that might lead to the exhaustion or extinction of such enthusiasms. Finally, the chapter suggests that optimists might curb their constructivist enthusiasms, and pessimists acknowledge that speed bumps are not necessarily the end of the road, if both reflect on how long securing the rule of law might be expected to take.

After a moment that was characterized by a flurry of constitutional reforms and elections, coups have returned in some states in Western, Central, and Sahel regions in Africa. The rule of law and democratic governance have come under significant stress. A confluence of events – colonial legacies, uprisings, regional conflicts, term elongation, challenges to the dynastic style of leadership, and the rising incidence of coups – challenge the entrenchment of the rule of law in contemporary Africa. Focusing on the period between 2020 and 2023, the chapter asks: Against the background of recent coups, how should we analyze the rule of law in contemporary Africa? Is the decline of the rule of law and democratic governance in sub-Saharan Africa as a region overstated, given that the coups are concentrated in Francophone West and the Central Africa? How should we think of the role of geopolitical contestations and colonial linkages in unsettling democratic regimes and eroding the rule of law in Africa?

International organizations have issued recommendations and prescriptions on constitution-making and reform, especially since 1989. However, such constitution-shaping activities by European and universal organizations, notably the UN, have for the most part not led to a better operation of the rule of law on the ground. Besides these problems of effectiveness, normative concerns against constitutional assistance and advice by international organizations have been raised. It is suggested that, in order to become more legitimate (which might then also improve effectiveness), constitution-shaping by international organizations needs to absorb postcolonial concerns. This includes respect for local rule-of-law cultures flowing from non-European constitutional thought and the inclusion of a much deeper social agenda with a global ambition. Thus revamped, international organizations’ constitution-shaping role could be reinvigorated so as to sustain the rule of law on the domestic level, thereby contributing to transnational ordering and global constitutionalism.

Under Recep Tayyip Erdoğan’s rule, Turkey has become an autocratic regime. The Turkish case raises questions about how international organizations tasked with upholding the rule of law can not only permit illiberal states to violate rule-of-law norms but also themselves undermine those principles. Conceptually, the rule-of-law/rule-by-law spectrum fails to account for authoritarian contexts. If the rule of law constitutes one end of the analytical spectrum, the other end is lawless rule, not rule by law, and the dual state lies somewhere in between. This chapter analyzes the case law of the European Court of Human Rights (ECtHR) concerning Erdoğan’s resort to the law to consolidate his power (rule by law) and his utter disregard of legal rules in repressing democratic dissent and engaging in state violence (lawlessness). The analysis goes beyond ECtHR judgments to examine inadmissibility decisions and strike-out rulings.

This chapter examines transnational efforts to uphold the rule of law by regional courts and organizations.  While not originally the primary focus of regional trade regimes and human rights systems in Africa, Latin America, and Europe, these institutions have now taken on a thicker set of obligations toward protecting the rule of law (along with democracy and other related concepts).  The result is that supranational and international organizations have become important actors confronting real-world threats to the rule of law. The chapter compares developments in Europe, Africa, and Latin America.

In the context of the transnational rule-of-law crisis the world is experiencing, this chapter asks whether the institutional solutions typically embraced by contemporary Latin American constitutions make a difference in fighting contemporary patterns of rule-of-law violations, and what sort of difference they make. The chapter advances the preliminary hypothesis that Latin American last-wave constitutions make a positive difference. After recalling historic trends with regard to democracy and the rule of law in Latin America and providing an overview of the standard institutional tools contained in Latin American constitutions, it describes the patterns of rule-of-law undermining that dominate the current political scenario in Mexico. The chapter especially addresses attacks on the National Electoral Institute and the quest to weaken electoral reliability, and the militarization of public life and state functions. The analysis shows that the Mexican constitution is successfully used to resist these developments, but it also suggests that existing dynamics excessively rely on ex post reaction and the overcharge judiciary.

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. 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 chapter attempts some answers. It traces the development of the Chinese legal system and the evolving rule-of-law debates in China and then explores how China might impact the international legal order.