The Term “Rules-based International Order” in International Legal Discourses

• Main Authors: A. N. Vylegzhanin, B. I. Nefedov, E. R. Voronin, O. S. Magomedova, P. K. Zotova
• Format: Article
• Language: English
• Published: Moscow State Institute of International Relations (MGIMO) 2021-07-01
• Series: Московский журнал международного права
• Subjects: rules-based order; international legal order; the rule of law; international legal system; soft law; normativity in international law
• Online Access: https://www.mjil.ru/jour/article/view/1190

INTRODUCTION. The term “rules-based order” is increasingly referred to in speeches within many international forums as well as declared from national political tribunes. The initial question is whether this notion is of purely political nature (since it is not used in the UN Charter or in other universal international conventions and this term is not relied upon by the International Court of Justice or by the UN International Law Commission). On the other hand, with the popularization of such a political discourse, the frequent usage of this term by representatives of some states (not only of Western States, but also of China, for example) can affect international law. The very application of this term definitely provokes a splash of other questions. How does the term “rules-based order” correlate with the universally recognized term “international legal order”? Does the idea to use the term “rules-based order” have substantive legal grounds? Which rules in concreto1 are meant by the term? Who and how creates these rules? What is the nature of these rules – are they rules of national law and if so – national rules of what State? If these are rules of international law – why is it not reflected in the term? Due to the attractive wording the concept gets widespread, but lacking a common understanding of its content, everyone might put a different meaning into the concept. Does it result in the fact that some officials, representing states, become politically entitled with the right to abuse the international legal order as it is established by modern international law? This research examines these theoretic aspects of the concept “rules-based order”, taking into account that in the context of international relations it may be referred to also as “rules-based international order”. An additional question to answer is whether the concept might be regarded as one of the numerous attempts to adapt the current international law to new challenges.MATERIALS AND METHODS. The research paper is based on the analysis of numerous statements of representatives of states, in which their attitude to the “rules-based order” concept is manifested, positive and critical remarks relating to the concept made by international lawyers, as well as other research papers of Russian and foreign international scholars. The methodological instruments include general scientific and special methods, among them the historical method, methods of formal logic, analysis, synthesis, as well as systemic, comparative legal methods.RESEARCH RESULTS. Although the above-noted questions about the legal meaning of the term “rulesbased order” have arisen only in recent years mainly in the context of the anti-Russian rhetoric of Western politicians, the term has been used much earlier at different levels in a wide variety of topics. The question of inconsistent perceptions of this term is another reflection of a more general problem of weakening or strengthening the universal legally binding international order. One of the appropriate interpretive versions of this concept might be that “rules-based order” means first and foremost the world order which is based on norms of international law (which are mandatory as well known), and on applicable non-binding international rules containing a normative element, such as international rules provided in the documents of intergovernmental organizations and conferences, interstate political arrangements, and other mutually accepted rules, formed in the contemporary practice of international relations. This interpretation allows to bring the concept in line with modern international law. Nevertheless, even within such interpretation, it is necessary to respect the distinction between the norms of international law, which are binding, and other rules, which do not create State’s obligations under international law. Thus, unilateral or “blocking” imposition of values of one State on other States under the guise of rules on which, according to the first State, the world order is based, will not be allowed.DISCUSSION AND CONCLUSIONS. If another interpretation prevails, the “rules-based order” concept may have a negative impact on the existing international legal order insofar as it “washes out” the established legitimate procedures of international law-making, thus rejecting traditional international values of legal stability and diminishing the role of international law in international relations. Such scenario would not only multiply legal uncertainly and even unreasonable expectations among the participants of the international processes, but also might lead to undermining the very fundamentals of modern international law based on the UN Charter. The latter in its turn will inevitably lead to the global legal instability and will dramatically increase the risks of World War III. At the moment, the frequent abuse of the term “rules-based order” by the representatives of the NATO countries in support of their politically motivated statements, agreed upon only among them, impedes achievement of accepted understanding of the concept at the universal level, that might be consistent with international law.