Sorry, Folks. There Is No Rules-Based World Order.
If there is one concept, endlessly recalled, that rings through debate about foreign affairs, it is the “rules-based” international order. The notion that all are bound by a global set of rules, an international law above power, is foundational to the UK National Security Strategy and the Australian Defence White Paper, and to the United States’ National Security Strategy. The United Nations itself was created to end the scourge of war and erect a rule of law in its place. This was always difficult, especially so now in an age of greater multipolarity and contestation, where the claims of sovereignty and the claims of human rights conflict, and observers worry that the very idea of rules is being eroded. “Rules-based” has become an incantation, summoned often and automatically, as though repeating it will make it so.
Order is better than chaos, obviously. A degree of regularity and process is better than the arbitrariness of power untamed, and it is better for states to formulate rough principles for the road, even if the road is unruly. The problem is not law. The problem is legalism, the ambition that formal rules can supplant power politics and substitute for wider judgement, that politics itself can be obviated by codes and institutions.
If faithfully observed, the idea that the world should revolve strictly around laws and their enforcement would quickly destroy a country’s ability to have a foreign policy. Five years ago, Amnesty International demonstrated where such doctrines lead, when it insisted that the Canadian government arrest former President George W. Bush for his part in torture while on a visit. Canada, surprisingly, resisted the temptation, deciding that it had other interests at stake in its relationship with a neighboring superpower—such as survival. Like other concepts that attempt to reduce the world to one big thing, legalism is of limited value. We can’t have a rules-based world order. Indeed, a fetish for rules is more the problem than the answer.
“Rules-based international order” is a seductive phrase. It sounds enlightened. It is part of the lingua franca of an internationalist class of lawyers, officials and commentators. It rolls off the tongue like other high-minded concepts, from “global governance” to “international community.” It is tailor made for the graduate lounge, the petition, the press release or the debating chamber. The concept is also a weapon that tempts major powers, its mantle offering their activities the exalted stature of police action. Tested in the unforgiving world of actual decisions, it doesn’t live up to its billing.
The absolute insistence on rules compliance is at the heart of a doctrine developed by former UN Secretary-General Kofi Annan and reasserted in the wake of the Iraq War. Annan, another advocate of the rules-based order, insisted that the United Nations is the “sole source of legitimacy” for the use of force. Annan’s doctrines rose to prominence in the days when the main focus of complaints about illegality was America’s Bush administration, whose invasion of Iraq without a final, second Security Council Resolution allegedly tore up a widely respected rule book, turning a built-up lawful order into a lawless world. For Annan, the lesson of Iraq was the need to work together through the UN. Unfortunately for that argument, most of the violence that occurred in post-Saddam Iraq took place after the United Nations Security Council passed Resolution 1546 in June 2004, unanimously authorizing the continuing presence of a multinational force. Iraqi insurgents had already showed what they thought of the “sole source of legitimacy” blowing up the UN headquarters in Baghdad. Is it possible that UN authority is not quite so all-important as legalists think it is?
Nevertheless, the idea has become contagious that military action can only be legitimate with the assent of the UN, an organization that once had Colonel Qaddafi’s Libya as chair of its Human Rights Commission, and whose Security Council includes regimes responsible for atrocities in Tiananmen Square and Tibet, or Chechnya and Crimea. Applied consistently, this doctrine would have blocked interventions that were justified morally and strategically, such as Vietnam’s intervention to end the Cambodian genocide, or Tanzania’s intervention against Idi Amin in Uganda. As the socialist intellectual Norm Geras suggested in his challenge to legalism, given the human weight of what is at stake, international law must take its chances “with the other pressing moral considerations that govern life and death.” If that applies to human rights, why not also national security or, indeed, international order itself?