Since the end of the Cold War and increasingly in recent years, US officials followed as usual by their European allies, have coined a new phrase which they use instead of international law, namely ‘rules-based international order’ (RBO). Leiden Journal of International Law has published an online book (published by Cambridge University Press) that explores the ramifications of this new term.
It asks: “What is this creature, the ‘rules-based international order’, that American political leaders have increasingly invoked since the end of the Cold War instead of international law? Is it a harmless synonym for international law, as suggested by European leaders? Or is it something else, a system meant to replace international law which has governed the behaviour of states for over 500 years?”
It argues that the RBO is the United States’ alternative to international law, an order that encapsulates international law as interpreted by the United States to accord with its national interests, ‘a chimera, meaning whatever the US and its followers want it to mean at any given time’. However, the United States herself is not even bound by RBO: “Premised on ‘the United States’ own willingness to ignore, evade or rewrite the rules whenever they seem inconvenient’, the RBO is seen to be broad, open to political manipulation and double standards.
For instance, the invasion of Afghanistan, Iraq, or Libya may be against international law, but it is not against RBO when it is carried out by the United States. However, the Russian invasion of Ukraine falls outside the RBO’s remit.
“Humanitarian Intervention”, such as the 1999 bombing of Belgrade, is against international law, but is in keeping with RBO when carried out by the United States. However, if Yemen attacks some Israeli-connected ships as a protest against Israeli genocide in Gaza that is against RBO.
The use of drones in Afghanistan, Iraq, Yemen, etc. to kill hostile militants (terrorists) is against international law, but is in keeping with RBO, only if carried out by the United States and allies, but if Russia attacks Chechen militants or if Iran attacks Israeli-backed militants in Iraq or Syria, that is contrary to RBO.
Israel’s genocide in Gaza, killing 30,000 mainly women and children and destroying practically the entire Strip with US-manufactured weapons, is in keeping with RBO, but if the Houthis use some Iranian drones to show solidarity with the besieged Palestinians, that is contrary to RBO.
The book summarises the main features of RBO and why US officials prefer this term to international order, as follows:
First, the United States is not a party to a number of important multilateral treaties that constitute an essential feature of international law.
Second, the United States has placed interpretations of international law justifying the use of force and the violation of international humanitarian law that are controversial and contested.
Third, the United States is unwilling to hold some states, such as Israel, accountable for violations of international law and accuse others of violating RBO, even though what they have done may not have violated international law.
In short, RBO is a dangerous invention used to subvert international law but justify US actions, to which the USA herself is not subject. It is a new charter of imperial laws designed by the United States, in order to justify any action she wants to take, but using it as a means of criticising and punishing those who do not abide by the imperial diktat. This is a dangerous trend, not only for the world but even for the United States, which puts her above the law and gives her and her clients, such as Israel, impunity and will turn them into pariahs. It is important to be aware of the hidden meanings behind this term and never to use it. I highly recommend this book.
John Dugard
The choice before us: International law or a ‘rules-based international order’?
Published online by Cambridge University Press on 21 February 2023
