In Resolution 62/70 of 8 January 2008, the UN General Assembly speaks about the rule of law at the international level and the rule of law at the national level. While these two phrases have framed the practical and scholarly debate on the rule of the law over the past years, this bifurcation hampers our understanding of, as well as effective policy formulation for, the rule of law problems that unfold in the 21st century. The rule of law increasingly is implicated at the interaction and interface between international and national law. We do not only speak about the rule of law at international level and the rule of law at domestic level. We also, and increasingly, have to speak of an internationalized rule of law. This is the rule of law as it applies to the overlapping sphere of domestic and international law.

This article is based on the proposition that the International Criminal Court (ICC) will need to become less ‘international’ and more ‘domestic’ if international justice is to stay relevant over the next ten years. The legal basis for this shift is already embodied in the ICC's core principle of complementarity that gives nation states jurisdiction over international crimes when conditions of judicial competency have been met. However, this jurisdictional shift from the ICC to domestic courts will have significant and far-reaching consequences. Building the capacity of national judicial systems will become increasingly important in the years ahead. The challenges will be daunting. The article maintains that it is paramount that the international community provide some discernible assistance to these new domestic courts to ensure that domestic proceedings are consistent with international norms. It sets out an effective mechanism that could be created to assist in this endeavour.

The article also looks at the challenges faced by the ICC and nation states in determining a state's inability to prosecute. Obviously, when there is total or substantial collapse of the judicial system, it is not difficult to determine that a state is incapable of undertaking trials. However, in more nuanced situations, the idea that the ICC will pass judgment on state courts is highly controversial. The inherent ambiguity and subjectivity in defining what constitutes inability to prosecute could easily place the court in a ‘stand-off’ with a nation state. The article sets out an approach for an objective, impartial and non-political evaluation regarding a state's ability to carry out judicial proceedings consistent with international standards. Such an evaluation would not be binding on the ICC, but would offer guidance in rendering a fair decision and impart valuable legitimacy.

The author examines how developments in international criminal law – including creation of the International Criminal Court and various hybrid tribunals – can have an impact on rule-of-law building efforts in post-conflict societies. Although trials of atrocity perpetrators primarily and appropriately focus on fairly trying the accused individuals, these processes also have a wider impact on public perceptions of justice and potentially can influence a society's ability to embrace rule of law norms. The quality of outreach and capacity-building accompanying these trials may well have a decisive effect on whether these proceedings, on balance, strengthen or undermine public confidence in justice and justice institutions in societies recovering from atrocities. This piece stresses the need to supplement international and hybrid criminal trials with more meaningful outreach to the affected populations, and with more systematic domestic capacity-building and empowerment aimed at both formal justice systems and civil society.

In 2008, the Commission on Legal Empowerment of the Poor (CLEP), chaired by Madeleine K. Albright and Hernando de Soto, published its report Making the Law Work for Everyone. In this report, the CLEP argues ‘… that four billion people around the world are robbed of the chance to better their lives and climb out of poverty, because they are excluded from the rule of law’. The CLEP also develops ‘… a comprehensive agenda for legal empowerment encompassing four pillars that must be central in national and international efforts to give the poor protection and opportunities…: access to justice and the rule of law, property rights, labour rights and business rights’. In this special section, which is edited and introduced by Stephen Golub, the idea of legal empowerment of the poor in general, and the report in particular, is discussed by Dan Banik, Julio Faundez, Jan Michiel Otto and Matthew Stephens.

The Commission on Legal Empowerment of the Poor has made a considerable contribution to the international development community by focusing attention on concrete legal needs of impoverished populations. As such, it constitutes a fine start for international, regional and domestic efforts to pull together a legal empowerment agenda that will directly benefit such groups. Nevertheless, the Commission's report falls short in key respects. It displays an inordinate faith in employing rational persuasion to grapple with a widespread problem it highlights – how to get self-interested politicians and other elites to forfeit their own advantage for the well-being of society. It is similarly stumbles in addressing how to best implement ambitious legal reforms, so that they have actual impact and do not simply exist on paper. And it does not reconcile the Commission's fundamentally top-down approach with an area of development that is bottom-up in nature. Going forward, it is important to build on the Commission's good start, but depart from its false and even counterproductive steps; the international community should instead draw on successful country-specific legal empowerment experience from diverse contexts. This features increased investment in civil society efforts to make the rule of law a reality, since such initiatives have a better track record than government-centered programs that mainly rely on elite good will. It more specifically involves enhanced long-term funding for domestic and international NGO efforts, both in the form of legal services for the disadvantaged and by integrating such services into broader socioeconomic development programs. The international community should also support impact-oriented applied research and move toward establishing a Millennium Development Goal for legal empowerment

Legal Empowerment of the Poor (LEP), which has recently been launched as a new conceptual and operational tool for poverty eradication, has attracted considerable attention in the face of claims that poverty persists partly because the poor do not enjoy legal rights or the power to exercise those rights. This essay provides a brief overview of the conceptual foundations of the LEP approach as reflected primarily in the main report of the Commission of Legal Empowerment of the Poor (CLEP). It thereafter critically examines the LEP's potential of promoting pro-poor governance and strengthening the protection and promotion of basic socio-economic and political rights of the poor. It argues that it is not only crucial to strengthen the theoretical underpinnings of the concept by recognizing the links between legal and political empowerment, but to also closely link the LEP with the general development experience so far.

With a constellation of high profile global thinkers and leaders, the Commission on Legal Empowerment of the Poor promised to reposition law and justice concerns at the centre of thinking on poverty alleviation. The Commission has succeeded in generating greater interest in the nexus between poverty, injustice and legal exclusion and is a welcome addition to the battle of ideas and concomitant battle over resources over how to raise the living standards of the poor and disadvantaged. However, this article, which analyzes the Commission's final report from the perspective of a legal empowerment practitioner, concludes that the Commission is an opportunity missed. The Commission's failure to properly tackle the political economy of reform and to justify its policy agenda with empirical data limits its value to the practitioner and will curtail its impact with policymakers.

The Commission on Legal Empowerment of the Poor (CLEP) states that workers in the informal economy can be legally empowered by bringing them within the framework of effective legal regulation, in particular, international labour standards. This paper acknowledges the value of extending rights to workers in the informal economy, but argues that CLEP's recommendations are impractical and unrealistic. It shows that neither international standards nor recent national legislation designed to promote the legalization of informal enterprises offers unqualified positive answers to resolve the plight of workers in the informal economy. Given the poverty of prevailing regulatory structures and the pervasive impact of inadequate structures of governance, workers in the informal economy justifiably distrust legal institutions and, as a consequence, do not, in the first instance, resort to legal institutions in their quest for empowerment. This paper offers examples of strategies that have successfully enhanced the social, political and economic power of workers in the informal economy. It concludes, however, that although the legal system has a role to play in consolidating the gains achieved by these strategies, law and legal institutions do not necessarily offer the best point of departure towards effectively empowering workers in the informal economy.

In this article I will first present the main thrust of Hernando de Soto's design, and then summarize praise and criticisms of his work. Next, I will address the question of to what extent De Soto's design is innovative. To this end I present a brief overview of past experience. I will then introduce some preliminary results of an international Leiden-based research project that has addressed the general causal relations between legalization, tenure security and poverty alleviation which constitute the basis of De Soto's argument. Most case studies of this project found that for De Soto's plans to be effective, a range of conditions had to be fulfilled. As long as these conditions are not fulfilled – which happens to be the unfortunate reality throughout the developing world – his plans will not work. Unfortunately, his proposals then are based on a whole set of unrealistic assumptions. Finally, in order to place De Soto's work in the context of today's development policies, with their emphasis on good governance and rule of law promotion, I will present a conceptual scheme which unpacks the key concepts of development, governance and the rule of law. In the concluding part I speculate on what we can learn from the success of De Soto's compelling theories, and from various criticisms of and responses to them How can these lessons be beneficial for a realistic rule of law promotion?