The Rule of Law and the Division of Labour Between National and International Law: The Case of International Energy Relations

Abstract

Parallel to the view that national and international law are two separate legal orders, the concept of the rule of law is often separated into a national and an international rule of law. Since the content of both can differ, this can lead to a confrontational perspective which ultimately asks which legal order ― national or international ― is supreme. Taking the regulation of international energy markets as an example, the paper shows that such a perspective faces fundamental conceptual difficulties as the separation between national and international law and between national and international public authority becomes increasingly blurred. Indeed, many phenomena of today’s globalised world, including international energy markets, are governed through a combination of both national and international law, with national and international actors and instruments engaged in a ‘division of labour’ in exercising governance functions and interacting with each other through different ‘interfaces’. In this context, neither a purely national, nor a purely international understanding of the rule of law can be supreme. Instead, national law and national authorities must be receptive to international law’s normative demands, including its idea of the rule of law, just as international law and international institutions need to accommodate demands stemming from national laws and their understandings of the rule of law. Ultimately, this should lead to the development of an overarching concept of the global rule of law as a vision to legally frame and bind the exercise of public authority in global governance.