Ukraine War, October 9, 2023: Conceptual errors in Anne Applebaum’s article in The Atlantic concluding “Rules don’t exist.”

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1) “Anne Applebaum, There Are No Rules; States and quasi-states are using extreme, uninhibited violence against civilian populations, The Atlantic, October 9, 2023;


Anne Applebaum is one of the leading journalists and authors on international affairs, particularly on Russia and Eastern Europe. She is married to Radek Sikorski, currently a Member of the European Parliament and a former foreign minuster of Poland from 2007-2014 in the government of Donald Tusk.

Her column today in The Atlantic entitled, “There are no rules,” expresses the keen sense of outrage many feel after Hamas launched its attack on Israel on Saturday, October 7, 2023, and as Putin’s war of aggression and barbaric violation of the laws of war (international humanitarian law) continues and grinds on with no end in sight.

While Applebaum makes a number of valid points, she also commits several conceptual errors which require correction if we are to avoid the negative consequences of allowing them to pass unquestioned.

Her first error, which unfortunately has become widespread in diplomatic circles, is to refer to international law and the U.N. Charter-based international legal order as the “rules-based international order”.

This term was virtually unknown outside of political science circles until 2008 when an Australian prime minister started using it. For over 400 years the evolving “rules” to which she refers have been universally understood as “international law”.

The international order to which the term “rules-based international order” vaguely refers is the international legal order based on the 1945 United Nations Charter and its cornerstone principle prohibiting “the threat or use of force against the territorial integrity or political independence of any state” (Article 2 paragraph 4 of the Charter).

International law is law, and it is binding on states.  That is not to say, however, that states do not on occasion violate their binding legal obligations.

This is true just as the commission of a murder does not negate the binding legal obligation prohibiting murder in domestic law.

The displacement of the term “international law” by the vague term “rules-based international order” is an extremely unfortunate kind of shorthand which obscures the fact that we are talking about binding legal obligations known as international law.

International legal obligations are organized in a hierarchy of norms with specific rules of interpretation as codified in Article 38 (1) of the Statute of the International Court of Justice (ICJ). The Statute is annexed to and forms an integral part of the United Nations Charter.

The use of the vague term of a “rules-based international order” also obscures the fact that there are certain international law norms that are so essential to the functioning of the international community that they belong to a special category of peremptory norms of international law (jus cogens) from which there can be no derogation, not even by agreement between the states concerned.

Among these peremptory norms of international law are the principle prohibiting the threat or use of force across international frontiers, the principle establishing that a treaty concluded as the result of coercion (e.g., the threat or use of force) is void, and the principle prohibiting the recognition of territory acquired through the illegal use of force.

The second conceptual error Applebaum makes is to confuse binding international law obligations with the “documents” they are set forth in. These documents have no binding force in and of themselves. It is only after they have been “ratified” by the requisite number of states that they acquire the binding nature of an international legal obligation.  Ratification requires approval by the internal processes of a state, and the deposit of the requisite “instrument of ratification” with the United Nations.

The United Nations Charter, which includes the primordial prohibition of the illegal use of force across international frontiers, has been ratified by all 193 members of the United Nations.

These formal legal processes, carried out in accordance with the specific terms of the 1961 U.N. Convention on the Law of Treaties, establish the binding legal obligations of states.

We are not talking about mere “documents” but rather the binding legal obligations created by their solemn ratification by the states concerned.

Applebaum also errs when she speaks of international legal obligations as “aspirational”. This may have been true with the original Universal Declaration of Human Rights adopted by the U.N. General Assembly in 1948, or the Helsinki Final Act adopted in 1977. However, it must be recognized that many of these aspirations have been converted into binding legal obligations through the adoption of multilateral conventions such as the 1967 U.N. Covenant on Civil and Political Rights.

Finally, Applebaum commits the conceptual error of concluding that notable violations of important legal norms means they do not, tin effect, exist. I suspect Applebaum is simply overstating her conclusion, which is probably that repeated violations of such fundamental norms makes it seem as if they don’t exist.

In point of fact, most countries continue to observe the norms, even when they are violated. In domestic law, extraordinary violations of the law prohibiting murder does not mean that the law prohibiting murder no longer exists.

It is also true, however, as Applebaum suggests, that repeated failures by major states or the community of states to enforce and reaffirm the norm that has been violated leads to a progressive weakening of its deterrent force.

She is certainly correct in pointing out that increasing violations of the prohibition of the threat or use of force and of international humanitarian law point toward the advent of growing anarchy in the world.

Applebaum draws attention to important and threatening developments in international affairs. Governments, decision makers, and citizens should take note of her warnings and act accordingly.

The conceptual clarifications set forth above should assist them in their actions. They should help them in their efforts to persuade other governments to join coalitions to uphold and reaffirm these basic norms of international law, and the U.N.-Charter-based international legal order.

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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.

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