Proponents of the liberal ‘rules-based order’ are in a dark frame of mind. Ten years ago their project – defined as the “thickening system of international organisations, rules and norms” driven by Washington in the aftermath of the Second World War – seemed to be up and running again after having been briefly derailed by the War on Terror. All the unpleasantness in Iraq and Afghanistan was fading into the background of public awareness; our rulers could breathe a sigh of relief and pretend that they had a handle on such things. China and Russia seemed cuddlier than they had ever been previously. The United Nations appeared to have found a way to a new, post-Cold War consensus, based around sustainable development and combating climate change. The EU was expanding in both territory and scope, and if you were an imaginative sort you could foresee similar regional organisations such as ASEAN or the OAS eventually taking on similar ambitions.
It was almost déjà vu all over again – a reminder of a similar mood that had set in after the collapse of the Iron Curtain. The point about Fukuyama’s ‘End of History’ – one raises the spectre of this cliché with trepidation – was never that we had actually reached that ending; it was that we had witnessed the complete conceptual unfolding of its (liberal) preconditions – free trade and movement, human rights, limited democracy, secularisation, and so on and so forth. The end of history was not nigh, admittedly, but in 2012 or 2013, our rulers, squinting at the world, kinda-sorta thought they could perceive its contours taking shape.
Well, they can’t see it anymore. Instead what they see is a collapse of the ‘rules-based order’ and a return to a multi-polar world of competing, self-interested, regional powers – meaning, in their eyes, anarchy. This was already perceived before Russia launched its invasion of Ukraine in 2022. The final triumph of Azerbaijan in Nagorno-Karabakh in 2023 and the ethnic cleansing that followed, and the recent Iran-sponsored atrocities in Israel, have simply hammered the point home. Central to this overarching narrative is the notion that the prelapsarian world was characterised by a faith in ‘rules’ (hence ‘rules-based order’), which have been flagrantly violated with impunity by rogue actors – Putin, Erdogan, MbS, Ali Khamenei and (inevitably) Donald Trump – with the result that those rules have lost bite and are being ignored. The consequence, it is said, is that the very ideal of an international order founded on and governed by rules is threatened.
This is an interesting case study in how hypocritical human beings can be. The truth, as anybody who pays attention to such things will know, is that proponents of the ‘rules-based order’ were never really interested in rules in the strict sense. Indeed, if anything, for the past 20 or 30 years our governing classes have been busily engaged in projects designed not only to circumvent particular rules but to undermine the archaic concept of rules per se. What we are now witnessing is not the consequence of a few prominent rogue actors breaking the rules, in other words, but the result of a systematic denigration of rules that has been going on amongst global governance enthusiasts for decades. That they now expect the rest of the world to be shocked and disappointed when it turns out that rules are not respected takes more than a little gall. To borrow a useful phrase from Milan Kundera, these people have been the brilliant allies of their own gravediggers; they’re now merely finding out what it means to inhabit a world without rules, and it is a bleak one indeed for their entire project (not to mention the rest of us).
Let’s start with some broad brush strokes. The making and enforcement of rules – abstract, general, binding and enforceable; ‘thou shalt not steal’ – were once considered to be the essence of government. But rules are, in modern governance circles, considered to be about as outmoded and silly a tool of governing as there can possibly be. Instead, generations of governance ‘experts’ have advocated for responsive, flexible, ‘smart’ regulation informed by the technical expertise of stakeholders in given domains and sub-domains, utterly opaque to outsiders, and designed not to generate rules but to come up with bespoke, ad hoc solutions to given problems on the fly. And most of the time this method of regulation is deliberately designed to be non-binding and nebulous. To quote from The Oxford Handbook of Governance, which I happen to have on the shelf here next to me:
The common theme [in governance circles] is the shift to debates about policy through design and the pluralisation of forms of public action. The focus is on institutional architecture and the relationships among private and public actors, rather than on the substantive prescription of state legislation, rules and judicial decisions.
In the sphere of commerce, this means:
[F]oster[ing] a culture of compliance within regulated industries [wherein] the [regulator], when feasible, asks the regulated private companies to identify problems and risks and to continuously reflect on possible solutions – effectively, to self-regulate. In turn, the [regulator] offers consultation and assistance.
In the sphere of public administration, meanwhile, it means governing through so-called ‘soft law’, meaning not binding and enforceable rules, but “a mixed array of incentive systems, targets, benchmarking, certification and voluntary codes”. The idea here is the same: one doesn’t govern conduct by making a rule and telling people they ought to abide by it. One governs through an ‘array’ of nudges which are often chummily in accordance with what the regulated actor wants to happen anyway.
This does not exactly mean that law itself goes away entirely, but rather that law is usually designed not to make general rules but (as I have previously described) to delegate regulatory authority to executive bodies such as administrative agencies or quangos who operate outside of genuine legislative oversight. Or, while law itself remains notionally in force, its rules becomes ‘softened’ in practice, as residents of big cities in the modern world will well understand. What happens on the ground is not usually ‘thou shalt not steal’, but rather ‘thou shalt be permitted to steal within certain parameters, defined in consultation with local stakeholders’.
The message here is clear enough: laws which merely make generally applicable, binding rules are for dinosaurs; avant-garde modern governance is about getting such rules out of the way so that people can ‘self-regulate’ in light of ‘consultation and assistance’. And – to come back to the international ‘rules-based order’ – this is as true in the highest spheres of global governance as it is in the grubbiest corners of local and regional government. Global governance has become deeply impatient and dissatisfied with the wearisome business of rule-making and especially rule enforcement. Rules are rigid; rules are boring; rules are annoyingly transparent in respect of their breach. More importantly, rules can’t achieve one’s desired goals. At best all they really can do is prohibit, rather than operationalise. At worst they simply get in the way of what one wishes to achieve. Much better to find other ways to make things happen instead.
Three examples from the international realm spring to mind. The first is the Sustainable Development Goals (SDGs). You’ll no doubt have heard of the SDGs, which are everywhere in global governance circles, and particularly in any sort of project connected to the United Nations. Visit the SDG website and you will find all kinds of activities being performed – summits, investment fairs, conferences, reports, partnership forums and so on – as well as a proud list of 1,345 publications and 7,775 ‘actions’. You’ll find databases of good practices and voluntary national reviews, voluntary commitment registries, and something called the “technology facilitation mechanism“. You’ll find lots of targets, process indicators and outcome indicators, and an awful lot of fancy graphics and photos.
What you won’t find, anywhere, though, are rules, and certainly not enforceable rules with binding effect. The SDGs were created by a UN General Assembly resolution, which is not binding, and nothing about their implementation is supposed to be enforceable. Remember, when it comes to modern governance “the focus is on institutional architecture and the relationships among private and public actors, rather than on the substantive prescription of state legislation, rules and judicial decisions”. And the entire SDG ‘agenda’ is basically a global forum for fostering relationships between governments, businesses and NGOs within an ‘institutional architecture’ that purportedly fosters compliance.
Why make rules, in other words, when you can agree together what sustainable development looks like and avoid the awkwardness and embarrassment – and transparency – that would go along with putting commitments into law? Much better to be flexible, responsive, fluffy and friendly. Much better for governments and businesses to self-regulate in light of the ‘consultation and assistance’ of development experts – especially if this can all be sketched out over dinner at fancy international conferences attended by ‘private and public actors’.
The second example is human rights. International human rights law certainly exists, having been committed to paper in the form of treaties on a number of occasions. But human rights practice in the international arena long ago broke free of any loyalty it had to the text of those treaties. Instead, what has emerged is an ‘ecosystem’ of different groupings of purported expertise: 10 treaty bodies, each overseeing one of the main international human rights treaties, and 59 special procedures (at the time of writing), not to mention the overriding Universal Periodic Review, the Human Rights Council and the Office of the High Commissioner for Human Rights. None of these entities or processes has the authority to do anything that has binding effect, but each of them nonetheless busily engages with a vast penumbra of NGO ‘stakeholders’ in order to shape policy and advance new and often radical departures from the text of the treaties (i.e., the rules themselves).
The result is an efflorescence of human rights-based recommendations and soft law-making that is truly bewildering in its scope and has no connection to anything envisaged by the people who made the original rules. In 2023 alone, for example, UN human rights experts (as I elsewhere observed) have issued Comprehensive Sexuality Education guidelines that advocate making sex education compulsory in schools from “early childhood”; opined that the right to health does not just cover humans but also the “health and integrity of the planet’s ecosystems”; and postulated a “fundamental shift in how businesses operate in society” by putting them to work alongside states and civil society organisations to achieve ‘holistic’ development based on self-determination, intersectionality, intergenerational equity and fair distribution.
None of these projects is tied to an identifiable rule except on the most tendentious of grounds; none of the experts offering these sweeping interpretations of the meaning of rights has any authority to issue binding rules at all; none of this is really law-making in any meaningful sense of the word. But this hardly seems to matter. Human rights experts and advocates go on building the world in their desired image regardless, forming ‘policy’ and declaring ‘standards’ in blithe indifference to the notion that there is such a thing as law and that it might have something to say about the subject of human rights.
And the third example is the career of the Responsibility to Protect (sometimes known by the acronym ‘R2P’), which was born in the aftermath of the genocide in Rwanda, and which is designed to provide a basis for armed humanitarian intervention to prevent such events occurring. The idea is that all States have the responsibility to protect their populations from atrocities, but that where this fails the “international community” must “encourage and assist” them, and ultimately step in when necessary to “take appropriate collective action, in a timely and decisive manner and in accordance with the UN Charter”.
R2P has been invoked in getting on for 100 UN Security Council resolutions, most recently with respect to the situation in South Sudan in 2023, but its legality is shrouded in ambiguity. It is not contained in a treaty and cannot realistically be called binding custom; it came into being through the work of a group of experts convened by the Canadian Government and various NGOs and foundations, and a vague text accepting its existence in principle was adopted at a major summit of world leaders in 2005. Its main advocacy network calls it variously a “norm” and a “concept”, and the outcome document of the summit in question frames everything around those classic weasel words, “case-by-case basis”.
Where there is binding international law, the rules are actually pretty clear: the use of force is prohibited except in self-defence (as stipulated in Article 51 of the UN Charter and long-standing binding custom), or where the Security Council has identified a threat to international peace and security. R2P, inasmuch as it purports to commit the international community to deploy force to prevent atrocities taking place within the borders of a state, is more properly understood as an effort to circumvent those rules and provide leaders with the freedom to act in disregard of them.
Surveying the contemporary international scene, in other words, it becomes clear that the ‘rules-based order’ that was so fondly remembered was really anything but. For a long time, global governance, as in the municipal sphere, has been characterised not by the creation of rules, nor by their enforcement, but rather by determined efforts to avoid the difficult and laborious process of having to think about them, in preference to soft law and non-binding ‘principles’ and ‘standards’. This, of course, in practice has very often tended to mean a wide range of actors – Government representatives, businesses, NGOs and ‘experts’ – getting together in various fora to arrange the world as they see fit.
To those on the inside of the ‘institutional architecture’, I daresay that all seems very cosy and legitimate, and entirely the appropriate way to achieve one’s benevolent ends. It allows for quick, flexible solutions where law-making and rule enforcement are rigid and slow, and since our leaders seem to consider themselves by definition always to act in the interests of the public, this mode of governance appears to them to be an entirely reasonable way of going about things.
But for those outside of the in-group, a message has been received loud and clear: rules aren’t particularly important, and the way to get things done is through ‘policy by design’ and a ‘pluralisation of forms of public action’. From Vladimir Putin to Hamas, and from Ilham Aliyev to Xi Jinping, a wide ‘array’ of actors appears to have got this memo; we should hardly be surprised when they therefore conclude that the fashionable thing to do is not to abide by rules but to “identify problems and risks and to continuously reflect on possible solutions – effectively, to self-regulate”.
Dr. David McGrogan is an Associate Professor of Law at Northumbria Law School. This article first appeared on his Substack. You can subscribe here.
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