Rule of Law Dynamics in an Era of International and Transnational Governance

Authored by Zurn, M., Nollkaemper, A. and Peerenboom, R. (eds.), published in 2012 Rule of Law Dynamics in an Era of International and Transnational Governance

The nature, objectives, and effects of rule of law promotion are undergoing major transformations as a result of the increasing international and transnational dimensions of governance.

Contemporary rule of law promotion has become internationalised in two additional senses. First, although not yet a norm of international law, there is a growing normative expectation that states need to comply with basic rule of law principles. Second, the rule of law agenda has increasingly targeted IGOs and transnational actors such as business to comply with basic rule of law principles. IGOs and donor states have been criticized by recipient countries for their own failures in rule of law compliance, undermining the legitimacy and effectiveness of rule of law programmes.

The major players in rule of law promotion (IGOs such as the World Bank, EU and UNDP, and Western states) have not yet, or insufficiently, altered their strategies, programmes and practices to reflect the shift to new levels and new forms of governance and the varying needs and capacities of recipient countries, leading to poor results in increasing the level of rule of law on a global scale. NGOs, on the other hand, appear to increasingly involve local actors in their rule of law promotion efforts.

This is the outcome of the first phase of the HiiL research project The Internationalisation of the Rule of Law: Changing Contexts and New Challenges on the underlying causes for poor results in the promotion of the rule of law. The researchers studied relevant literature and current practice (World Bank, United Nations, EU, several donor and recipient states) through the perspective of ‘rule of law dynamics’, which refers to the increasing international and transnational dimension of rule of law promotion, the interaction between the international and domestic level, the interaction between rule of law promotion (donor strategies) and rule of law conversion (the ways it is promoted and the ways it is received), and the relevance of rule of law diffusion (the modalities that cause the spread of expectation that one complies with the rule of law). Both literature and practice pay too little attention to the recipient’s perspective and needs (failures in rule of law conversion) and its effect on the success of programmes. One-size-fits-all programmes, top-down strategies, transplants by developed states of their own rule of law standards without the capacity of the recipient to cope with them, are still principal features of today’s rule of law promotion efforts. Almost no attention is paid in literature and practice to rule of law diffusion, i.e. the diffusion of the applicability of the rule of law to e.g. IGOs and the resulting lack of legitimacy. Contemporary rule of law promotion strategies should therefore be based on an understanding that rule of law promotion, conversion and diffusion are inextricably linked.

The second phase of this project will built on the conclusions reached during the first phase and focus on:

  1. the causal mechanisms that lead states, IGOs and other transnational actors to adopt and comply (with variations) with rule of law principles,
  2. assessing emerging minimum standards of rule of law at both the international and national level through the study of their interaction
  3. the recipient perspective in particular in middle-income countries

Read More