Ukraine War, March 21, 2022 (III): Let’s stop talking about a “rules-based international order” and talk about “international law” and “the international legal order” instead

To see a list of previous articles, enter “Ukraine” in the Search Box on the upper right, on The Trenchant Observer web site, and you will see a list in chronological order.

Dispatches

1) Stefan Talmon, “Rules-based order v. international law?” GGPIL – German Practice in International Law, January 20, 2021.

2) “New jargon and nonsense: ‘The old liberal international order,'” The Trenchant Observer, June 16, 2018;

3) Peter Beinart, “The Vacuous Phrase at the Core of Biden’s Foreign Policy, New York Times, June 22, 2021;

Before 2008, no one had ever heard of the “rules-based international order”. An Australian leader used the term, first coined by Hedley Bull, an Australian political scientist, in his book The Anarchical Society: A Study of Order in World Politics , which was published in 1977.

Bull was an International Relations theorist, and his book was influential among IR specialists. “The rules-based international order” was kind of political science shorthand for “international law” and “international legal institutions”. Lost in their own jargon and endless debates (within a “rational actor paradigm”) about the existence and effectiveness of international law, the International Relations experts kind of lost sight of what the new term referred to. They also failed to notice that no international lawyers  or international legal scholars used this highly reductionistic term.

The reason for this is that nations have over the last 400 years been developing precise definitions of international law terms and concepts, and have  been developing iinternational legal institutions for over a century.  For example, the definition of what international law is, currently contained in Article 38 (1) of the Statute of the International Court of Justice ICJ), itself an integral part of the U.N. Charter, goes back to 1919 and the Statute of the Permanent Court of International Justice (PCIJ), an organ of the League of Nations.

The great appeal to political leaders of the imprecise term “a rules-based international order” may be precisely its lack of specific content, allowing some like Barack Obama to proclaim their support for it in general, while violating, or asserting the right to violate, its specific norms and prohibitions in practice.

International law is quite specific, and does not allow leaders such lattitude.

In any event, the term is non-sensical. To what does it refer if not to “international law” and “the international legal order”?

The term is not eaven readily translatable, leading to such abominations as a German translation like “eine regel-basierte internationale Ordnung”.

All tbe terms in international law have accepted and precise equivalents in the six official languages of the United Nations (Arabic, Chinese, English, French, Russian, and Spanish) and virtually all other major languages. In every country on the planet you will find collections of the decisions of the PCIJ and the ICJ, in French and English, and the Collected Courses or Recueil des Cours of the Hague Acamemy of International Law, which gives courses on international law in English and French to students from around the world, taught by professors from around the world. The 15 judges of the International Court of Justice represent countries from every continent and from the major civilizations on the planet. They all understand the precise grammar and language of international law.

So, let’s stop talking about a “rules-based international order” and start talking again about specific norms of international law and their violation, and also norms and institutions that need to be developed to deal with new and urgent problems.

Just as we can’t say anything meaningful about a “rules-based domestic order”, we can’t say anything meaningful about a “rules-based international order”.

It is time for political leaders to stop trying.

Let’s just shelve the term, and return to discussing real problems with real and specific terms and concepts.

Then perhaps government leaders can start thinking clearly about strengthening international law and institutions, and the practical steps that can be taken to bring this about.

The Trenchant Observer

About the Author

James Rowles
"The Trenchant Observer" is edited and published by James Rowles (aka "The Observer"), an author and international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. Dr. Rowles is a former staff attorney at the Inter-American Commission on Human Rights (IACHR) of the Organization of American States OAS), in Wasington, D.C., , where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, Dr. Rowles has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. Dr. Rowles speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.=LL.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, Dr. Rowles has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on some the best articles that have appeared in the blog.

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