Ukraine War, May 24, 2022 (II): Stop it! Stop saying “international rules-based order”; the correct term is “legal” not “rules-based”; We are talking about “international law” as defined in Article 38(1) of the Statute of the International Court of Justice, not any old politician’s concept of “rules” or what is “rules-based”

Posted By: James Rowles May 24, 2022

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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) “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,” The Trenchant Observer, March 21, 2022;

Commentary

Jarring stupidity, or worse. Every time the Observer, an international lawyer, hears the term “rules-based international order” he wants to scream.

What would people say if, after a shooting, they heard their officials swear that they were going to do everything they can to uphold “the rules-based domestic order”?

The word is “law”.

Why can’t government officials simply say it?

“The rules-based international order.” Whatever that means.

European Commission President Ursula van der Leyen uses the term. Anthony Blinken uses the term. President Biden uses the term. Everybody is using the term. See, e.g.,

Kissinger’s comments come as world leaders say Russia’s war in Ukraine has thrown the “whole international order into question.” European Commission President Ursula von der Leyen told global leaders in Davos that the war is not only “a matter of Ukraine’s survival” or “an issue of European security” but also “a task for the entire global community.” She lamented Russian President Vladimir Putin’s “destructive fury” but said Russia could one day recover its place in Europe if it “finds its way back to democracy, the rule of law and respect for the international rules-based order … because Russia is our neighbor.”
–Timothy Bella, “Kissinger says Ukraine should concede territory to Russia to end war,” Washington Post, May 24, 2022 (10:47 a.m. EDT).

This usuage is fundamentally flawed, and dangerous. It is time for Western leaders to stop using the term.

Article 38(1) of the Statute of the International Court of Justice (ICJ), an Annex to and integral part of the United Nations Charter, defines international law as follows:

Article 38

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

(b) international custom, as evidence of a general practice accepted as law;

(c) the general principles of law recognized by civilized nations;

(d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

This is what is meant, precisely, by “international law”. “The international legal order” is, by definition, the international order established by international law as defined in Article 38(1) of the ICJ Statute and the United Nations Charter.

“International law” is the term that has been used for over 400 years to-refer to the norms which govern the relations of states. It has been defined since 1919 in the words of Article 38(1) of the Statute of the predecessor Permanent Court of Justice (PCIJ), which were copied in the text of Article 38(1) of the Statute of the ICJ in 1945.

Officials in every country in the world know precisely what “international law” refers to. International legal norms and norms in treaties and other international acts and documents (e.g., General Assembly resolutions) are translated into the six official languages of the U.N. (Arabic, Chinese, English, French, Russian, and Spanish)), and have had consistent meanings for centuries, and absolutely clear meanings since 1919.

“Rules-based international order” is a term coined by an Australian political scientist and first used officially by an Australian prime minister in 2008.

Many who use the term understand it to mean the the international order based on the U.N. Charter and international law.

Others knowingly use the term, which is admittedly vague and subject to idiosyncratic interpretation, in an effort to support the “rules-based international order” in general, without themselves being held accountable under international law for the actions of their state.

Are international leaders so dense that they cannot say “international legal order” or “international law”, or merely intellectually lazy, or indeed unwilling to recognize the binding nature of international law, against every nation and in all circumstances?

In any event, the term “rules-based international order” is ill-defined, can’t be translated into many languages with any coherence (e.g., “Regel-basierte internationale Ordnung” in German), and is inherently sunject to manipulation by states and leaders seeking to avoid accountability under international law.

Stop using the term.

Say “international law” and international legal order” instead. Their meanings are clear and precise. To understand what they mean, all a statesman or a politician has to do, in any country in the world, is to read Article 38(1) of the Statute of the ICJ, in Arabic, Chinese, English, French, Russian or Spanish.

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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.