The origin of the rules-based rubric can be seen in US strategic documents. Neither of President Clinton’s 1994 or President Bush’s 2000 National Security Strategies made reference to a rules-based order. Barack Obama’s 2010 Strategy only mentioned rules-based once although its is notable that he advocated the US “must now build the sources of American strength and influence, and shape an international order [italics added] capable of overcoming the challenges of the 21st century
By his next National Security Strategy in 2015 President Obama’s emphasis had shifted. While there are only five direct references to a rules-based international order much of the substantive argument is closely related. The 2015 Obama Strategy notes the US has an obligation “to lead the way in reinforcing, shaping, and where appropriate, creating the rules, norms, and institutions [italics added]” and to “uphold and refresh the international rules and norms”. For Obama the rules are American rules for American objectives enforced by America.
The shift from international law to a rules-based order framework in public diplomacy and strategic policy is a rational one on America’s part. The sovereign equality of states is a key principle underlying international law, denying America’s exceptionalism and hegemony. In theory, international law is politically neutral, and formally neutral among regime types, including between autocracies and democracies. The equality and neutrality aspects, disturbingly for US policy makers, allows for the possibility for non-democratic states influencing international law making.
Finally, international law is only applicable to those states who formally agree to be subject to it; this is the consensus principle. Ideally, international law is the antithesis of, and superior to, power politics in international relations. The reality is different.
Restricting its foreign policy activities within the norms and processes of international law doesn’t sit well with the struggling hegemon, and American administrations have had to invent the imaginary but vague regime of a “rules-based global order”.
Unlike the Cold War era international law is no longer a fruitful arena for America. As power shifts occur and non-western states seek to claim the neutrality and sovereignty international law offers, the US has had to cloak its activities under a new disguise.
