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Why the West should stop talking about the “rules-based order”

This vague, hypocritical mantra, designed for a US-dominated world that no longer exists, is harming international law.

By Jerome Roos

The decision by Karim Khan, the chief prosecutor at the International Criminal Court (ICC) in The Hague, to seek an arrest warrant for the Israeli prime minister Benjamin Netanyahu has sent tremors through government circles in Washington and London. President Joe Biden has called the charges of war crimes and crimes against humanity in Gaza “outrageous”, while Rishi Sunak has described the proceedings as “deeply unhelpful”.

The Western leaders have in turn been criticised for their blatant double standards. When Russia launched its full-scale invasion of Ukraine in 2022, Biden labelled his Russian counterpart Vladimir Putin a “thug”, accused him of genocide and denounced him for undermining “the rules-based international order”. The US government later applauded the ICC for its decision in 2023 to prosecute the Russian leader for war crimes.

But now that the ICC is going after Netanyahu, Biden is striking a different tone. Suddenly “the rules-based international order” has been downgraded against what the president has called his “unwavering” support for Israel. He has even signalled that his administration might work with hard-line Republicans in Congress to impose sanctions on the ICC. “What’s happening [in Gaza] is not genocide,” Biden declared on 20 May. “We reject that.”

To the rest of the world, this inconsistent posturing is the latest example in a long tradition of Western hypocrisy. For far too long, the West has pretended that it gets to pick and choose from its own rulebook on statecraft. One senior leader reportedly told Khan that “this court is built for Africa and thugs like Putin”. The message was clear: the rules are there for the others; they do not apply to us.

Critics are right to feel morally outraged. But below the surface, there is more to this story than mere hypocrisy. The double standards on Israel reveal a deeper tension at the heart of Western foreign policy doctrine. This tension centres on a new idea that has dominated the thinking about international relations over the past decade: that we live under a rules-based international order (RBIO) that is being challenged by malicious actors, who seek to tear up our carefully crafted global rulebook in the pursuit of a revisionist agenda to create a multipolar world.

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“The rules-based international order” has become almost a mantra, ritualistically recited by Western leaders from Washington to Canberra. A staple of foreign policy jargon, the RBIO now appears in government white papers, think tank reports, newspaper columns, social media posts, White House press releases and the leading foreign policy journals. The Biden administration itself is all in on the idea: the defence of the RBIO has become the geopolitical cornerstone of its foreign policy doctrine from the Ukrainian steppe to the South China Sea.

But for all the enthusiasm with which the term is embraced in the West, its content remains an enigma. The RBIO is an almost comically ill-defined concept. What rules does it refer to? Who gets to set them? How are they enforced?

As a rhetorical device, the term does not fare much better. It lacks the emotive resonance that the propagandistic label of the “free world” once carried in an earlier era of geopolitical contestation. By comparison, the RBIO feels cold and detached. It fails to speak to the imagination and seems far removed from the concerns of ordinary citizens.

Why, then, do Western leaders keep invoking it? What convinced them, at this critical juncture in world history, to embrace such a vague and uninspiring concept, ridden with internal contradictions and external inconsistencies? Who came up with this strange hybrid of an idea and what were they hoping to achieve? What is the rules-based international order, that formulation so soothing to the Western mind?

Given the cocksure attitude with which the RBIO is often invoked nowadays, one could be forgiven for thinking that the rules-based order has been with us for a long time. Yet the concept is a surprisingly recent one. A Google Ngram search shows that the term was rarely used before 2000, and its usage did not take off until the past decade or so.

We can trace the roots of the RBIO to two separate sources. The first is the more familiar idea of the “liberal international order” (LIO). Brought to prominence by the international relations scholar John Ikenberry in the 1990s, the LIO was truly a child of its times. Buoyed by Western triumphalism after the US-led victory in the Cold War, it wore its ideological commitments on its sleeve. The LIO gave a clear political identity to the “new world order” that came into being after the fall of communism, as successive US governments sought to globalise the rule of free-market capitalism and liberal democracy under the aegis of uncontested American hegemony.

Even then, the LIO did not immediately capture the public imagination. It mostly remained confined to a new body of international relations scholarship on the changing geopolitical landscape of a newly unipolar world. The term itself only belatedly appeared in the New York Times in 2012. Since then, its use has surged. Today, it is still the preferred term for the US-led world order that emerged in the post-1990 period.

In recent years, however, Western leaders have increasingly begun to drop the explicit ideological identifier and come to speak of the LIO in the more neutral-sounding terms of a rules-based order. This semantic shift was not a spontaneous evolution of language. It served a particular political purpose.

The adjective “rules-based” has its origins in the arcane realm of international trade. It goes back to the same period as the LIO, but it speaks to a more technical set of concerns. As globalisation accelerated and deepened in the early 1990s, neoclassical economists and advocates of free trade, such as Jagdish Bhagwati, began to speak of the need for a “rules-based trading system” that could lower the barriers to trade and create a “level playing field” between firms in different countries.

The phrase soon found its way into the trade negotiations that would culminate in the creation of the World Trade Organisation in 1995. During these years, the idea of a “rules-based system” remained an academic concept, largely limited to scholarly tracts on intellectual property disputes and international arbitration over unfair trade practices, such as subsidies and tariffs. It was rarely used in common political discourse. But that changed in the late 1990s, when widespread anti-globalisation protests rocked international summits from Seattle to Genoa.

It was in this environment of growing political contestation that Western leaders first sensed a need to defend their rules-based system. At the World Economic Forum in 2000, then US president Bill Clinton responded to the anti-globalisation protests in Seattle by declaring: “We will – we must – support the rules-based system.” Tony Blair’s Labour government strongly agreed. As Stephen Byers, then president of the Board of Trade, put it after Seattle: “There is no alternative to a rules-based system for international trade.”

Politicians used the “rules-based” moniker to shield their trade policies from political opposition. Western leaders presented the World Trade Organisation not as a neoliberal trade regime, but as an impartial rules-based one. This particular framing may not have inspired great passions, but that was the point. The idea was to render international trade as an abstract, non-political domain that was best administered by technocrats: a dull and complicated field that was not of any real concern to the average citizen.

So if today’s “rules-based” foreign policy discourse sounds like old-school Davos doublespeak, that’s because it is. The rules-based lexicon directly arose out of the Clintonite and Blairite brand of neoliberalism that dominated the final decade of the 20th century. We should not be surprised to learn that the person responsible for introducing it into US foreign policy discourse came straight out of that world.

Illustration by Jonathan McHugh

Hillary Clinton never really left the 1990s. When Barack Obama appointed the former first lady as his secretary of state in 2009, she brought with her many of the same policy advisers – and many of the same ideas – that had informed her husband’s administration. It was in these Democratic circles that the notion of a “rules-based order” began to proliferate. In 2010, Clinton appears to have become the first US cabinet member to use the term publicly.

The geopolitical context here is crucial. Just as the notion of a rules-based trading system came into widespread use at a time of growing political resistance to neoliberal globalisation, so the idea of a rules-based order cannot be understood without reference to the intensifying geopolitical contestation from a rising China against the US-led world order. Here, too, the “rules” were actually meant to obfuscate and depoliticise the reality of Western power projection.

As secretary of state, Hillary Clinton was directly responsible for overseeing Obama’s foreign policy directive: the so-called pivot to Asia. After the self-inflicted wounds of the global war on terror, this strategic reorientation was meant to direct the US’s attention away from its forever wars in the Middle East to confront the bigger challenge of an increasingly assertive Chinese presence in the Asia-Pacific region.

In November 2011, Clinton gave a speech in Honolulu whose title, “America’s Pacific Century”, was clearly framed as a rebuke
to what many commentators were already starting to call the “Chinese century”. The secretary of state noted that if Washington wanted to accomplish its goals in Asia, “we have to create a rules-based order, one that is open, free, transparent and fair”.

This new rules-based order was always meant to be anchored in free trade. The centrepiece of Obama’s pivot to Asia was the Trans-Pacific Partnership, or TPP, an abortive free-trade agreement between 12 countries in the Pacific Rim. As the White House put it in a 2015 press release, “TPP is central to our vision of the region’s future and our place in it… TPP is a critical step towards our strategic goal of revitalising the open, rules-based economic system that the United States has led since the Second World War.”

Yet behind this emphasis on rules-based trade lurked a larger agenda. In their more candid moments, senior US officials recognised that the RBIO was never about the rules themselves. It was about preserving the capacity of the US to shape the rules on its own terms. As Obama stated in 2016, “America should write the rules. America should call the shots. Other countries should play by the rules that America and our partners set, and not the other way around.”

In other words, the Democratic foreign policy establishment originally used the RBIO as a fig leaf for continued American primacy within the Asia-Pacific region. By presenting itself as the upholder of a rules-based system that is free, fair and open to all, the Obama administration sought to lay the groundwork for a new American Century: this time orientated not towards Europe and the North Atlantic, but towards Asia and the Indo-Pacific. As the White House’s National Security Strategy put it, “America must lead. Strong and sustained American leadership is essential to a rules-based international order… The question is never whether America should lead, but how we lead.”

The rules-based order was therefore never meant to be a set of consistent and binding international rules. It was invented as a rhetorical device to help the US confront a rising China. A recent study confirms that a very specific negative framing has emerged in recent years that construes China as an adversary of the “rules-based international order”. This has had far-reaching implications. The study finds evidence that scare stories about a revisionist China tearing up the global rulebook “may be crowding out other, less malign narratives about China’s rise”.

Today, the mantra of the RBIO has become firmly entrenched in Western foreign policy discourse on both sides of the Atlantic. When Donald Trump briefly challenged it between 2017 and 2021, European leaders made a great show of their continued loyalty to the concept. Yet even under Trump, senior US officials continued to use the RBIO as a stick with which to beat their rivals. As secretary of state Rex Tillerson pledged in 2017: “We will not shrink from China’s challenges to the rules-based order.”

It was the Biden administration, however, that would deploy the concept most aggressively, following the Russian invasion of Ukraine and rising tensions with China over the Taiwan Strait and the South China Sea. As Biden himself put it, “We make up 25 per cent of the [world economy]. We need to be aligned with the other democracies, another 25 per cent or more, so that we can set the rules of the road instead of having China and others dictate outcomes because they are the only game in town.”

The objectives, then, were always quite clear. The question is whether they can be achieved. There are now many signs that the Western love affair with the RBIO is already leading to intense political blowback. The more the Americans and the Europeans accuse the Chinese and the Russians of challenging the rules-based order, the more they open themselves up to criticism that they fail to follow their own rules.

The US’s condemnation of China for its interference with the freedom of navigation, for instance, will ring hollow if the US keeps refusing to sign up to the UN Convention on the Law of the Sea. Similarly, Biden’s charges of genocide against Putin will fall on deaf ears if he continues to support Netanyahu’s war crimes in Gaza, and refuses to ratify the Rome Statute and so recognise the jurisdiction of the ICC.

This is no longer just a matter of Western hypocrisy. It is not only that the West sets lofty goals and then fails to live up to them: the problem runs deeper than that. It’s that Western governments, by insisting on the primacy of their own rules-based order, are actively undermining multilateralism and the existing system of international law.

This, unfortunately, appears to be precisely the point. Citing the rules-based order is meant to blur the distinction between binding and non-binding rules. This enables the US and its Western allies to present themselves as the upholders of universal principles while at the same time tweaking the rules to suit their own needs. It allows Washington to present itself as the final arbiter of the global rulebook, without ever submitting its own officials to the higher authority of an independent court of law.

Legal scholars can see straight through this shambolic exercise. Many are therefore growing increasingly concerned that the Western embrace of the rules-based order may well end up hastening the demise of the existing system of international law. As the South African law professor John Dugard, a former judge at the International Court of Justice in The Hague, has warned: “The West’s adherence to both a rules-based international order and international law undermines efforts to agree upon a universal system of international law premised on the same fundamental rules, principles and values.”

Given the West’s own double standards, the concept of the RBIO now risks becoming a dead letter elsewhere in the world. This is not just the case for the autocratic regimes of Russia and China, which have their own reasons for disparaging the West, but also for the democratic “middling powers” of the Global South. In recent years, countries such as Brazil, Mexico, India, Indonesia and South Africa have displayed a willingness to chart a more independent course in international affairs.

At this point, the sensible way forward would be to ditch the awkward and inconsistent phrasing of the RBIO. The existing system of international law is far from perfect, but at a very minimum the West needs to return to the UN Charter and the binding treaties and conventions it has already signed up to. It needs to accept that the unipolar moment of the 1990s – with its uncontested US hegemony and its neoliberal free-trade dogmas – is over. It needs to recognise, as the non-aligned countries of the Global South already do, that we are witnessing the birth of a multipolar world.

The West therefore has no choice but to work with its international partners on a basis of equality and mutual respect to upgrade the multilateral UN framework, so that it can protect humanitarian law, address legitimate security concerns and confront the planetary crisis of the 21st century.

If this means that an Israeli prime minister, a Russian president and a few Western leaders will need to be carried off to The Hague to stand trial for war crimes, that would be a small price to pay for peace and justice to prevail.

Jerome Roos is a fellow in international political economy at the London School of Economics, and author of the Rift newsletter

[See also: The new Great Game]

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This article appears in the 12 Jun 2024 issue of the New Statesman, The hard-right insurgency