RULES-BASED ORDER (RBO) AND INTERNATIONAL LAW

Published 2023 by Cambridge University Press on behalf of the Foundation of the Leiden Journal of International Law in association with the Grotius Centre for International Law, Leiden University)

Founded on a liberal international order, RBO is ‘based on principles of democratic governance, the protection of individual rights, economic openness and the rule of law and is characterized by equality, human rights, freedom, multilateralism, free movement of goods, and collective security. In content, it goes beyond the narrow positivist perception of international law to include soft law, including the standards and recommendations of international standard-setting organizations and conferences and rules made by non-state actors.

According to this view, the RBO is based on principles that constitute the foundations of international law and in addition takes account of the broader sources of contemporary international law advocated by many scholars. In common with international law, it is premised on the values of the international community enshrined in the Charter of the United Nations, in multilateral treaties and customary rules that give effect to these values.

The indeterminate and undefined nature of the ‘rules’ of the RBO and the failure to consider their relationship with international law has led to the questioning of the reason for the resort to the RBO on the part of the United States. The manner in which the United States has justified apparent violations of international law by its own forces or those of it close friends has inevitably resulted in a cynical, albeit plausible, explanation for the US preference for the RBO.

According to this view, the rules-based international order may be seen as the United States’ alternative to international law, an order that encapsulates international law as interpreted by the United States to accord with its national interests, ‘a chimera, meaning whatever the US and its followers want it to mean at any given time’. Premised on ‘the United States’ own willingness to ignore, evade or rewrite the rules whenever they seem inconvenient’, the RBO is seen to be broad, open to political manipulation and double standards.

There are several reasons that may explain why the United States prefers to invoke a ‘rules-based international order’ and not international law.

First, the United States is not a party to a number of important multilateral treaties that constitute an essential feature of international law. It is not a party to the Law of the Sea Convention which means that it is compelled to reprimand China for threatening the ‘rules-based international order’ in the South China Sea rather than international law. It is not party to a number of fundamental treaties governing international humanitarian law, including the 1977 Protocols to the Geneva Conventions on the Laws of War, the Rome Statute of the International Criminal Court, the Convention on Cluster Munitions, and the Anti-Personnel Mine Ban Convention. Nor is it a party to the Rights of the Child Convention or the Convention of the Rights of Persons with Disabilities. Inevitably this makes it difficult for the United States to hold states accountable for violations of international humanitarian law and human rights law to the extent that these rules are not considered by the United States to be part of customary international law.

Second, the United States has placed interpretations on international law justifying the use of force and the violation of international humanitarian law that are controversial and contested. Its interpretation of the right of self-defence to allow pre-emptive strikes and the use of force against insurgents/militants characterized as terrorists are widely disputed. The resort to the use of force as a species of humanitarian intervention in the 1999 bombing of Belgrade, conducted under the auspices of NATO, is likewise disputed. The interpretations placed on Security Council resolutions by the United States and the United Kingdom, to authorize the use of force in Iraq in 2003 and Libya in 2011 have been much criticized as unlawful pretexts for regime change. The denial of prisoner-of-war status to Taliban soldiers detained at Guantanamo Bay following the US invasion of Afghanistan in 2002 has been questioned on the ground that it violates Article 4 of the Convention Relative to the Treatment of Prisoners of War. The use of drones in Afghanistan, Iraq, and Yemen to kill hostile militants/terrorists, which the United States has justified as permissible self-defence, has been criticized as a violation of international humanitarian law and human rights law. It seems that the United States finds it more convenient – and possible – to uphold contested interpretations of international law of this kind under the broad ‘rules’ of the RBO than to justify them under the stricter rules of international law.

Third, the United States is unwilling to hold some states, such as Israel, accountable for violations of international law. They are treated as sui generis cases in which the national interest precludes accountability. This exceptionalism in respect of Israel was spelled out by the United States in its joint declaration with Israel on the occasion of President Biden’s visit to Israel in July 2022, which reaffirms ‘the unbreakable bonds between our two countries and the enduring commitment of the United States to Israel’s security’ and the determination of the two states ‘to combat all efforts to boycott or de-legitimize Israel, to deny its right to self-defence, or to single it out in any forum, including at the United Nations or the International Criminal Court’. This commitment explains the consistent refusal of the United States to hold Israel accountable for its repeated violations of humanitarian law, support the prosecution of perpetrators of international crimes before the International Criminal Court, condemn its assaults on Gaza (best portrayed as excessive enforcement of the occupation of Gaza and not self-defence as the United States argues), insist that Israel prosecute killers of a US national (Shireen Abu Akleh), criticize its violation of human rights as established by both the Human Rights Council and the General Assembly, accept that Israel applies a policy of apartheid in the Occupied Palestinian Territory, and oppose its annexation of East Jerusalem. And, of course, there is the refusal of the United States to acknowledge the existence of Israel’s nuclear arsenal or allow any discussion of it in the context of nuclear proliferation in the Middle East. Such measures on the part of Israel are possibly seen as consistent with the ‘rules-based international order’ even if they violate basic rules of international law.

Of course, double standards, exceptionalism, and hypocrisy are a feature of the foreign policies of states that accept international law and do not favour the RBO. Such conduct must be condemned as it undermines the notion of accountability for all states, irrespective of their position and friends in the international community. The amorphous ‘rules’ of the RBO, however, make it easier for a state to provide special treatment to another state and to condone its violations of international law. The United States is able to justify its refusal to hold Israel accountable for its violations of international law by arguing that international law as interpreted by the United States – the RBO – allows assaults on Gaza as self-defence against terrorism, the assassination of militants/terrorists by drones, the application of apartheid, the annexation of territory, and the continuation of an occupation which is widely seen as illegal.

These explanations for the United States’ preferred invocation of the RBO do not apply consistently to other states of the Western alliance. Most are parties to most multilateral treaties. Only the United Kingdom participated in all the controversial military interventions named above, although some were undertaken under the umbrella of NATO. And most Western states have been prepared to hold Israel accountable for its violations of international law, albeit only in word. This probably explains why Western leaders have used the term RBO interchangeably with international law and appear to treat the two orders as synonymous. This means that the RBO is largely an order advocated by the United States.

The RBO has been used by the West to judge Russia, and more recently China. This has led to what might be termed a jurisprudential debate between Russia and the West, with Russia condemning the West for abandoning respect for international law in its assertion of the RBO, and the United States sticking to its assessment of Russia’s misconduct in terms of the RBO.

Sergey Lavrov, the Russian Foreign Minister, has been consistently critical of the West for its resort to a rules-based international order. In 2020 he declared that the West advocated a ‘West-centric rules-based order as an alternative to international law’ with the purpose of replacing international law with non-consensual methods for resolving international disputes by bypassing international law. He explained that ‘[t]his term was recently coined to camouflage a striving to invent rules depending on changes in the political situation so as to be able to put pressure on disagreeable States and even on allies’.

President Putin has echoed this view. On 25 May 2022, Foreign Minister Sergey Lavrov, on the occasion of Africa Day, read out a statement by President Putin in which he declared in the context of Russia’s action in Ukraine that:

The main problem is that a small group of US-led Western countries keeps trying to impose the concept of a rules-based world order on the international community. They use this banner to promote, without any hesitation, a unipolar model of the world order where there are “exceptional” countries and everyone else who must obey the “club of the chosen”.

In 2019 a group of Russian scholars produced an academic paper in which they conclude that:

Thus, there are sufficient reasons to think that the modern concept “rules-based order” has a political connotation, first and foremost an anti-Russian one, it is added to the current political weapons of the West … In a nutshell the concept presents a tool to universalize a “one sided Western project” of the world order.

The war of words between the West and Russia over the RBO has now entered the rhetoric of the invasion of Ukraine.

Russia has violated the most fundamental principles of international law and the law of the UN Charter in its brutal assault on Ukraine and its similarly brutal occupation of the country. It has violated the prohibition on the use of force, the obligation to respect the territorial integrity of another sovereign state and the rules of human rights law and international humanitarian law. Despite this, the United States has preferred to condemn Russia for violating the undefined RBO whose rules have yet to be enunciated.

For its part, Russia has criticized the West for acting in accordance with the RBO. As shown above President Putin complained about the West’s reliance on the RBO in his statement on Africa Day, 25 May 2022. The precedents set by the West’s generous interpretation of its obligations under the RBO were also apparent in President Putin’s declaration of a special military operation (that is, war) on Ukraine on 24 February 2022. In this statement he referred to the 1999 NATO bombing of Belgrade, the 2003 invasion of Iraq, the 2011 intervention in Libya, and the US action in Syria, all of which were premised on dubious and disputed interpretations of international law and the UN Charter. The clear implication was that the US/West/NATO had purported to act in accordance with the rules-based international order and not international law on these occasions.

Tu quoque or ‘whataboutism’ is frequently used by states in order to deflect criticism of their own conduct. The Soviet Union and now the Russian Federation have used this defence against the United States for many years. For example, it has accused the United States of lynching Afro-Americans, practising racial discrimination and supporting the Contras in Nicaragua in response to criticism of its own human rights record. Although tu quoque may be a useful political strategy it is not an accepted defence in international law. On the other hand, there is no doubt that precedents of illegal conduct will be invoked as a licence for legality by a delinquent state, particularly when they are justified on contested interpretations of the law belonging to the rules-based international order. According to Chatham House, America’s recent violations of international law have ‘cast a long shadow over America’s claim to be the principal defender of a rules-based international system’.

China too has asserted its opposition to a rules-based order. In May 2021 at a virtual debate of the Security Council on multilateralism, Foreign Minister Wang Yi declared that:

International rules must be based on international law and must be written by all. They are not a patent or privilege of a few. They must be applicable to all countries and there should be no room for exceptionalism or double standards.

In similar vein in 2021 Yang Jiechi, Director of the Office of the Central Commission for Foreign Affairs, stated that China upholds the United Nations-centred system and the international order underpinned by international law and not the ‘so-called rules-based international order’ advocated by a small number of countries.

In the light of the charge by both scholars of the West and the political leaders of Russia and China that the rules-based international order has been advanced by the West as an alternative to international law it cannot be accepted without examination that the RBO is identical with international law and that this is simply a name for international law preferred by political theorists and practitioners.

The rules comprising the ‘rules-based international order’ have still to be spelled out. As yet there is no indication that they will take the form of general or particular international conventions as understood by Article 38(1)(a) of the Statute of the International Court of Justice. Furthermore, we do not know what the nature of these rules is. It has been suggested that ‘they do not have a positive quality. Rather their worth depends on the extent to which they serve the interests and values of States which sustain them’. If there are rules, the method for their creation remains a mystery. We do not know ‘who ultimately lays down these rules and determines their content’, we do not know whether states must consent to these rules, and if so, which states. Certainly, the International Law Commission and the UN Sixth Committee are not involved in this process. Charitably, it seems that the rules are tacit agreements between a handful of Western states to which there has been no clear consent. But consent is the basis of international law. According to Stefan Talmon, the rules-based order has been used to call upon certain states to comply with existing international legal rules which these states actually have not consented to, and thus are not bound. The term ‘rules-based order’ blurs the distinction between binding and non-binding rules, giving the impression that all states and international actors are subject to this order, irrespective of whether or not they have consented to these rules.

Judicial settlement does not feature in the language of the RBO. The International Court of Justice would probably have no competence to hear a dispute based on a ‘rule’ of the RBO under Article 38(1) as such ‘rules’ lack content and cannot be identified as belonging to any recognized source, but it might be able to do so under Article 38(2) if states were to refer a dispute to the Court to decide a case ex aequo et bono.

Criticism of the RBO on the ground that it fails to qualify as a formal source of international law under Article 38 of the ICJ Statute may be questioned on the ground that it does not take account of methods of law-making that have expanded the sources of international law. In the result it adopts a highly formalistic approach to contemporary international law. There is substance in this criticism. The manner in which states invoke non-binding resolutions of the United Nations and other inter-governmental institutions, the decisions of international conferences and other standard-setting bodies and what is today known as ‘soft law’ makes it clear that states view international law as a fluid and flexible order as much concerned with standards giving rise to expectations as with rules and principles recognized by Article 38. If this is accepted, it may be argued, the RBO simply recognizes the existence of a contemporary legal order freed from legal formalism.

The difficulty with the above criticism is that it presupposes that the ‘rules’ of the ‘rules-based order’ have a known content and go beyond the assertion of broad values. Respect for human rights, self-determination, territorial integrity, freedom of navigation, democratic governance, free movement of goods, economic openness etc. are important values that may be invoked by a court to assist it in the interpretation of legal rules but they are not rules of law as commonly understood. They lack any definition or content. There is no indication that these rules are binding or enforceable (and if so, how), whether they may be curtailed or whether they are enjoyed by all nations and peoples. In short, the RBO makes no attempt to proclaim a legal order with defined rules and law-making and dispute settlement procedures.

The RBO is something other than international law. It is an alternative regime outside the discipline of international law which inevitably challenges and threatens international law. Charitably it may be seen as an order comprising values of a liberal order. Less charitably it may be seen as a competing order advocated by some Western states, particularly the United States, which seeks to impose the interpretation of international law that best advances the interests of the West, particularly those of the United States. Unlike international law it does not seem to be a universal order. Instead, it is an order employed by the West, again particularly the United States, to ensure its dominance.

To return to the war in Ukraine. In its invasion of Ukraine, the Russian Federation has violated fundamental principles of international law, ranging from the unlawful use of force and the violation of the territorial integrity of another sovereign state to brutal violations of international humanitarian law and human rights law. These violations of international law are best judged by a legal order accepted and understood by all nations of the world rather than by an amorphous regime advocated by one of parties to the conflict. The statement issued by the EU condemning Russia’s invasion of Ukraine as a violation of Article 2(4) of the UN Charter, a crime of aggression under the Rome Statute of the International Criminal Court and a violation of peremptory norms of international law carries more weight than President Biden’s assertion that the invasion violates the rules-based international order.

A final reason for discarding the rules-based international order as a means for judging the behaviour of states is that it is an unnecessary and harmful obstacle to attempts to agree on international law as a universal order governing all states. All states have their own idiosyncrasies when it comes to the application of international law but they seldom threaten the universality of international law. At present there are, however, several major divisions between states over the cardinal features and principles of international law.

The most notable of these is that between the West on the one hand and Russia and China on the other. While the West emphasizes democratic governance, human rights, environmentalism, and globalization, Russia and China emphasize the sovereign equality of states, non-intervention in the internal affairs of states, the settlement of disputes by mechanism to which states have consented, the immunity of states and their officials, and the condemnation of double standards in the treatment of states. This Sino-Russian approach to international law was spelled out in 2016 in the Declaration of the Russian Federation and the People’s Republic of China on the Promotion of International Law.

The West’s adherence to both a rules-based international order and international law undermines efforts to agree upon a universal system of international law premised on the same fundamental rules, principles and values. An international order founded on the UN Charter and international law as it has evolved since the end of the Second World War is a sounder recipe for peace than the amorphous and discriminatory rules-based international orde