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Dispatches

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

Analysis

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.

The Trenchant Observer

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