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AbstractA surge in academic interest in the interaction of international law with international politics has recently raised the profile of the rule of law in global politics. The idea of an 'international rule of law' is central to many accounts of international order, and to both political science and legal scholarship. Despite its popularity, the concept is rarely defined or examined. This article considers the theory and practice of the international rule of law. It shows first that the international rule of law cannot be deduced from the conventional Anglo-American version of the rule of law in domestic legal theory, as sketched by Joseph Raz and others. It then considers two competing versions of a distinctly international concept of the rule of law, one based on a positivist theory of compliance and the other on a structurationist theory of practice. The former is more common in legal and political scholarship but the latter accounts better for the political power of international law in relation to states.

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.

The international regulation of whaling has been a tremendous success. It has reduced whale hunting dramatically from its peak in the 1960s and brought almost all species of whales out of danger of extinction. Today, whaling conservation stands as a—or perhaps the—paradigm of a successful international regime. Yet the international organization responsible for this success is itself in such crisis that it may not survive.

The paper asks whether humanitarian intervention is legal and reviews contemporary legal arguments on both sides. It finds that both views are sustainable by conventional accounts of the sources of international law; humanitarian intervention is at once legal and illegal. The paper then considers the implications of this for the idea of the rule of law in world politics. The power of international law in this case comes from its utility as a resource for justifying state policies, not as a means for distinguishing compliance from non-compliance. Law remains important to world politics, but in a different way than usually understood.