The Term “Rules-based International Order” in International Legal Discourses

Abstract

INTRODUCTION . The term “rules-based order” is increasingly referred to in speeches within many international forums as well as declared from national political tribunes. The initial question is whether this notion is of purely political nature (since it is not used in the UN Charter or in other universal international conventions and this term is not relied upon by the International Court of Justice or by the UN International Law Commission). On the other hand, with the popularization of such a political discourse, the frequent usage of this term by representatives of some states (not only of Western States, but also of China, for example) can affect international law. The very application of this term definitely provokes a splash of other questions. How does the term “rules-based order” correlate with the universally recognized term “international legal order”? Does the idea to use the term “rules-based order” have substantive legal grounds? Which rules in concreto1 are meant by the term? Who and how creates these rules? What is the nature of these rules – are they rules of national law and if so – national rules of what State? If these are rules of international law – why is it not reflected in the term? Due to the attractive wording the concept gets widespread, but lacking a common understanding of its content, everyone might put a different meaning into the concept. Does it result in the fact that some officials, representing states, become politically entitled with the right to abuse the international legal order as it is established by modern international law? This research examines these theoretic aspects of the concept “rules-based order”, taking into account that in the context of international relations it may be referred to also as “rules-based international order”. An additional question to answer is whether the concept might be regarded as one of the numerous attempts to adapt the current international law to new challenges.
MATERIALS AND METHODS . The research paper is based on the analysis of numerous statements of representatives of states, in which their attitude to the “rules-based order” concept is manifested, positive and critical remarks relating to the concept made by international lawyers, as well as other research papers of Russian and foreign international scholars. The methodological instruments include general scientific and special methods, among them the historical method, methods of formal logic, analysis, synthesis, as well as systemic, comparative legal methods.
RESEARCH RESULTS. Although the above-noted questions about the legal meaning of the term “rulesbased order” have arisen only in recent years mainly in the context of the anti-Russian rhetoric of Western politicians, the term has been used much earlier at different levels in a wide variety of topics. The question of inconsistent perceptions of this term is another reflection of a more general problem of weakening or strengthening the universal legally binding international order. One of the appropriate interpretive versions of this concept might be that “rules-based order” means first and foremost the world order which is based on norms of international law (which are mandatory as well known), and on applicable non-binding international rules containing a normative element, such as international rules provided in the documents of intergovernmental organizations and conferences, interstate political arrangements, and other mutually accepted rules, formed in the contemporary practice of international relations. This interpretation allows to bring the concept in line with modern international law. Nevertheless, even within such interpretation, it is necessary to respect the distinction between the norms of international law, which are binding, and other rules, which do not create State’s obligations under international law. Thus, unilateral or “blocking” imposition of values of one State on other States under the guise of rules on which, according to the first State, the world order is based, will not be allowed.
DISCUSSION AND CONCLUSIONS . If another interpretation prevails, the “rules-based order” concept may have a negative impact on the existing international legal order insofar as it “washes out” the established legitimate procedures of international law-making, thus rejecting traditional international values of legal stability and diminishing the role of international law in international relations. Such scenario would not only multiply legal uncertainly and even unreasonable expectations among the participants of the international processes, but also might lead to undermining the very fundamentals of modern international law based on the UN Charter. The latter in its turn will inevitably lead to the global legal instability and will dramatically increase the risks of World War III. At the moment, the frequent abuse of the term “rules-based order” by the representatives of the NATO countries in support of their politically motivated statements, agreed upon only among them, impedes achievement of accepted understanding of the concept at the universal level, that might be consistent with international law.

Full text

35
Moscow Journal of International Law • 2 • 2021
DOI: https://doi.org/10.24833/0869-0049-2021-2-35-60
Alexander N. VYLEGZHANIN
Moscow State Institute of International Relations (University) MFA Russia
76, pr. Vernadskogo, Moscow, Russian Federation, 119454
danilalvy@mail.ru
ORCID: 0000-0003-4833-2525
Boris I. NEFEDOV
Moscow State Institute of International Relations (University) MFA Russia
76, pr. Vernadskogo, Moscow, Russian Federation, 119454
boris-nefedov@mail.ru
ORCID: 0000-0002-7762-5979
Evgeny R. VORONIN
Moscow State Institute of International Relations (University) MFA Russia
76, pr. Vernadskogo, Moscow, Russian Federation, 119454
tverv@rambler.ru
ORCID: 0000-0002-1229-0012
Olga S. MAGOMEDOVA
Moscow State Institute of International Relations (University) MFA Russia
76, pr. Vernadskogo, Moscow, Russian Federation, 119454
olga.magomedova.96@mail.ru
ORCID: 0000-0003-0593-3101
Polina K. ZOTOVA
The Government of Moscow,
22, Voznesenskiy per., Moscow, Russian Federation, 125009
zotovapk@mos.ru
ORCID: 0000-0002-8647-7410
Research article
Received 10 January 2021
Approved 21 May 2021
INTRODUCTION. e term “rules-based order” is
increasingly referred to in speeches within many in-
ternational forums as well as declared from national
political tribunes. e initial question is whether this
notion is of purely political nature (since it is not used
in the UN Charter or in other universal international
conventions and this term is not relied upon by the
International Court of Justice or by the UN Interna-
tional Law Commission). On the other hand, with
the popularization of such a political discourse, the
frequent usage of this term by representatives of some
states (not only of Western States, but also of China,
for example) can aect international law. e very
application of this term denitely provokes a splash of
other questions. How does the term “rules-based or-
der” correlate with the universally recognized term
“international legal order”? Does the idea to use the
term “rules-based order” have substantive legal
grounds? Which rules in concreto
1
are meant by the
term? Who and how creates these rules? What is the
THE CONCEPT “RULES-BASED
ORDER” IN INTERNATIONAL LEGAL
DISCOURSES
1 Latin: in English - “specically”, “dening concretely”; in French – “dans le concret”.

36
ВОПРОСЫ ТЕОРИИ МЕЖДУНАРОДНОГО ПРАВА
А.Н. Вылегжанин, Б.И. Нефедов,
Е.Р. Воронин, О.С. Магомедова, П.К. Зотова
Московский журнал международного права • 2 • 2021
nature of these rules – are they rules of national law
and if so – national rules of what State? If these are
rules of international law – why is it not reected in
the term? Due to the attractive wording the concept
gets widespread, but lacking a common understand-
ing of its content, everyone might put a dierent
meaning into the concept. Does it result in the fact
that some ocials, representing states, become politi-
cally entitled with the right to abuse the international
legal order as it is established by modern internation-
al law? is research examines these theoretic aspects
of the concept “rules-based order”, taking into ac-
count that in the context of international relations it
may be referred to also as “rules-based international
order”. An additional question to answer is whether
the concept might be regarded as one of the numerous
attempts to adapt the current international law to
new challenges.
MATERIALS AND METHODS. e research pa-
per is based on the analysis of numerous statements
of representatives of states, in which their attitude to
the “rules-based order” concept is manifested, positive
and critical remarks relating to the concept made by
international lawyers, as well as other research pa-
pers of Russian and foreign international scholars.
e methodological instruments include general sci-
entic and special methods, among them the histori-
cal method, methods of formal logic, analysis, synthe-
sis, as well as systemic, comparative legal methods.
RESEARCH RESULTS. Although the above-noted
questions about the legal meaning of the term “rules-
based order” have arisen only in recent years mainly
in the context of the anti-Russian rhetoric of Western
politicians, the term has been used much earlier at
dierent levels in a wide variety of topics. e ques-
tion of inconsistent perceptions of this term is another
reection of a more general problem of weakening or
strengthening the universal legally binding interna-
tional order. One of the appropriate interpretive ver-
sions of this concept might be that “rules-based order”
means rst and foremost the world order which is
based on norms of international law (which are man-
datory as well known), and on applicable non-bind-
ing international rules containing a normative ele-
ment, such as international rules provided in the
documents of intergovernmental organizations and
conferences, interstate political arrangements, and
other mutually accepted rules, formed in the contem-
porary practice of international relations. is inter-
pretation allows to bring the concept in line with
modern international law. Nevertheless, even within
such interpretation, it is necessary to respect the dis-
tinction between the norms of international law,
which are binding, and other rules, which do not cre-
ate State’s obligations under international law. us,
unilateral or “blocking” imposition of values of one
State on other States under the guise of rules on
which, according to the rst State, the world order is
based, will not be allowed.
DISCUSSION AND CONCLUSIONS. If another
interpretation prevails, the “rules-based order” con-
cept may have a negative impact on the existing inter-
national legal order insofar as it “washes out” the es-
tablished legitimate procedures of international
law-making, thus rejecting traditional international
values of legal stability and diminishing the role of
international law in international relations. Such sce-
nario would not only multiply legal uncertainly and
even unreasonable expectations among the partici-
pants of the international processes, but also might
lead to undermining the very fundamentals of mod-
ern international law based on the UN Charter. e
latter in its turn will inevitably lead to the global legal
instability and will dramatically increase the risks of
World War III. At the moment, the frequent abuse of
the term “rules-based order” by the representatives of
the NATO countries in support of their politically mo-
tivated statements, agreed upon only among them,
impedes achievement of accepted understanding of
the concept at the universal level, that might be con-
sistent with international law.
KEYWORDS: rules-based order, international legal
order, the rule of law, international legal system, so
law, normativity in international law
FOR CITATION: Vylegzhanin A.N. [et al.]. e
Term “Rules-based International Order” in Inter-
national Legal Discourses – Moscow Journal of In-
ternational Law. 2021. No.2. P. 35– 60. DOI: https://
doi.org/10.24833/0869-0049-2021-2-35-60
e authors declare the absence of conict of interest.

37
Alexander N. Vylegzhanin, Boris I. Nefedov,
Evgeny R. Voronin, Olga S. Magomedova, Polina K. Zotova ISSUES OF THEORY OF INTERNATIONAL LAW
Moscow Journal of International Law • 2 • 2021
ПОНЯТИЕ «ПОРЯДОК, ОСНОВАННЫЙ
НА ПРАВИЛАХ» И МЕЖДУНАРОДНОЕ
ПРАВО
ВВЕДЕНИЕ. На многих международных пло-
щадках и с национальных политических трибун
всё чаще используется термин «международный
порядок, основанный на правилах». Исходный во-
прос состоит в том, является ли этот термин
чисто политическим (поскольку он не использу-
ется ни в Уставе ООН, ни в других универсаль-
ных международных конвенциях, и на этот тер-
мин не опираются ни Международный суд ООН,
ни Комиссия международного права ООН)? С дру-
гой стороны, с популяризацией этого политиче-
ского дискурса частая практика использования
данного термина представителями отдельных
государств (причем не только западных, но и,
например, Китая) может повлиять и на разви-
тие международного права. Само использование
данного термина определенно вызывает ряд дру-
гих вопросов. Как термин «порядок, основанный
на правилах» соотносится с общепризнанным
термином «международно-правовой порядок»?
Имеет ли идея применять термин «порядок, ос-
нованный на правилах» существенные правовые
основания? Какие правила in concreto подразуме-
ваются под этим термином? Кто и как создает
эти правила? Какова природа этих правил – яв-
ляются ли они нормами национального права,
DOI: https://doi.org/10.24833/0869-0049-2021-2-35-60
Александр Николаевич ВЫЛЕГЖАНИН
Московский государственный институт международных отношений (Университет) МИД России
Проспект Вернадского, д. 76, Москва, 119454, Российская Федерация
danilalvy@mail.ru
ORCID: 0000-0003-4833-2525
Борис Иванович НЕФЕДОВ
Московский государственный институт международных отношений (Университет) МИД России
Проспект Вернадского, д. 76, Москва, 119454, Российская Федерация
boris-nefedov@mail.ru
ORCID: 0000-0002-7762-5979
Евгений Ростиславович ВОРОНИН
Московский государственный институт международных отношений (Университет) МИД России
Проспект Вернадского, д. 76, Москва, 119454, Российская Федерация
tverv@rambler.ru
ORCID: 0000-0002-1229-0012
Ольга Сергеевна МАГОМЕДОВА
Московский государственный институт международных отношений (Университет) МИД России
Проспект Вернадского, д. 76, Москва, 119454, Российская Федерация
olga.magomedova.96@mail.ru
ORCID: 0000-0003-0593-3101
Полина Константиновна ЗОТОВА
Правительство г. Москвы
Вознесенский переулок, д. 22, Москва, 125009, Российская Федерация
zotovapk@mos.ru
ORCID: 0000-0002-8647-7410
Исследовательская статья
Поступила в редакцию: 10.01.2021
Принята к публикации: 21.05.2021

38
ВОПРОСЫ ТЕОРИИ МЕЖДУНАРОДНОГО ПРАВА
А.Н. Вылегжанин, Б.И. Нефедов,
Е.Р. Воронин, О.С. Магомедова, П.К. Зотова
Московский журнал международного права • 2 • 2021
и если да, то национальным правом какого го-
сударства? Если имеются в виду нормы между-
народного права, то почему это не отражено в
самом термине? Ввиду привлекательной формы,
но при отсутствии общего понимания его со-
держания, это понятие получает широкое рас-
пространение при том, что каждый может при-
дать ему разный смысл. В результате, получают
ли некоторые должностные лица, представляю-
щие государства, политическую возможность
злоупотреблять международным правопоряд-
ком, установленным на основе современного
международного права? В настоящей статье
представлен анализ этих проблемных аспектов
концепции «порядок, основанный на правилах»,
учитывая, что в контексте международных от-
ношений его также называют «международным
порядком, основанным на правилах». Дополни-
тельный вопрос, на который нужно ответить,
заключается в том, может ли данная концепция
рассматриваться как одна из многочисленных
попыток адаптировать действующее междуна-
родное право к новым вызовам.
МАТЕРИАЛЫ И МЕТОДЫ. Работа основа-
на на анализе многочисленных высказываний
представителей государств, в которых про-
является их отношение к концепции «порядок,
основанный на правилах», положительных и
критических замечаний к этой концепции со
стороны юристов-международников, а также
научных публикаций других отечественных и
зарубежных исследователей-международников.
Методологический инструментарий включа-
ет общенаучные и специальные методы, в том
числе исторический метод, методы формальной
логики, анализа, синтеза, а также системные,
сравнительно-правовые методы.
РЕЗУЛЬТАТЫ ИССЛЕДОВАНИЯ. Хотя вы-
шеупомянутые вопросы о правовом значении
термина «порядок, основанный на правилах»
возникли только в последние годы, главным об-
разом в контексте антироссийской риторики
западных политиков, этот термин использо-
вался гораздо раньше на разных уровнях по ши-
рокому кругу тем. Проблема не единообразного
понимания данного термина является одним из
отражений более общей проблемы ослабления
или усиления универсального, юридически обще-
обязательного международного порядка. Одним
из приемлемых вариантов представляется то
толкование данного понятия, согласно кото-
рому «международный порядок, основанный на
правилах» означает, прежде всего, порядок в
мире, основанный на нормах международного
права (которые, как известно, имеют обяза-
тельный характер), а также на применимых
необязательных международных правилах, со-
держащих нормативный элемент, таких как
международные правила, предусмотренные в до-
кументах межправительственных организаций
и конференций, политических договоренностях
государств и другие общепризнанные правила,
сформировавшиеся в современной практике
международных отношений. Такое толкование
позволяет привести данную концепцию в со-
ответствие с современным международным
правом. Но даже в рамках такого толкования
необходимо проводить различие между между-
народно-правовыми нормами (обязательными)
и другими правилами (не создающими обяза-
тельств государств согласно международному
праву). Тем самым, не будет допускаться одно-
стороннее или «блокирующее» навязывание цен-
ностей одного государства другим под видом
правил, на которых, по мнению первого, основы-
вается «порядок» в мире.
ОБСУЖДЕНИЕ И ВЫВОДЫ. При преоблада-
нии другого толкования концепция «порядок,
основанный на правилах» может негативно
влиять на существующий международный
правопорядок, размывая установившуюся прак-
тику международного правотворчества, тем
самым отвергая традиционные международные
ценности правовой стабильности и снижая
роль международного права в международных
отношениях. Такой сценарий не только множит
правовую неясность и даже необоснованные ожи-
дания участников международных процессов, но
и может привести к подрыву самих основ со-
временного международного права, основанного
на Уставе ООН. Последнее, в свою очередь, при-
ведет к глобальной правовой нестабильности и
резко повысит риски третьей мировой войны.
На данный момент частое злоупотребление
термином «порядок, основанный на правилах»
представителями государств-членов НАТО в
поддержку своих политически конъюнктурных
заявлений, келейно согласованных между собой,
препятствует достижению на универсальном
уровне взаимоприемлемого понимания данной
концепции, которая соответствовала бы меж-
дународному праву.
КЛЮЧЕВЫЕ СЛОВА: порядок, основанный на
правилах, международный правопорядок, верхо-
венство международного права, международная

39
Alexander N. Vylegzhanin, Boris I. Nefedov,
Evgeny R. Voronin, Olga S. Magomedova, Polina K. Zotova ISSUES OF THEORY OF INTERNATIONAL LAW
Moscow Journal of International Law • 2 • 2021
1. Introduction
In recent years, a certain neo-narrative “rules-
based order” has gradually gained ground at
many international meetings, even at the level of
the United Nations. Within the framework of a vig-
orous political debate, this phrase, while becoming
popular, may not raise suspicion of an “anarchist” or
destructive connotation, because of the key “positive”
words - “order” and “rules”. However, if we scrutinize
it in the context of the international legal discourse,
then questions arise about the exact legal meaning
of this term, and – most importantly – about the
grounds for its appearance and about its relation to
the existing international legal system. In the default
of a clear content behind the catchy form of the neo-
narrative, its meaning has to be dened from the
context of its use. In this way the “uncertainty” of
the concept becomes not just a shortcoming (if such
is assumed), but the danger of “erosion” of the very
core of the current international legal system.
In January 2019, Sergei Lavrov, Russian Minister
of foreign aairs stated: “ere have been attempts
[…] to replace the universal norms of international
law with a “rules-based order.” is term was re-
cently coined to camouage a striving to invent rules
depending on changes in the political situation so as
to be able to put pressure on disagreeable states and
oen even on allies”
2
.
On the other hand, in G7 Joint Statement made
in 2021 the leaders of Western countries addressed
Russian “behavior that is threatening the rules-based
international order”
3
.
As Stefan Talmon, professor of the University of
Bonn remarked, “one does not have to go so far as
the Russian Foreign Minister who, in fact, accused
Germany and others of trying to replace internation-
al law with a rules-based order founded on political
expediency that serves their political, military and
economic interests”
4
. According to the Russian For-
eign Minister statement presented at the 12
th
BRICS
(summit hosted by Russian Federation in 2020), the
Western countries “are advocating a West-centric
concept of a “rules-based world order” as an alter-
native to international law”
5
. Obviously, the situation
around the concept “rules-based international or-
der” goes beyond the framework of discursive mis-
understanding, moving to the level of competitive
understanding what is the world legal order today. To
identify the root of this conict, we should address a
number of questions, beginning with the emergence
of the concept.
юридическая система, мягкое право, норматив-
ность в международном праве
ДЛЯ ЦИТИРОВАНИЯ: Вылегжанин А. Н. [и
др.]. 2021. Понятие «порядок, основанный на
правилах» и международное право. – Москов-
ский журнал международного права. №2. С. 35–
60. DOI: https://doi.org/10.24833/0869-0049-2021-
2-35-60
Авторы заявляют об отсутствии конфликта
интересов.
2 Foreign Minister Sergey Lavrov’s remarks and answers to media questions at a news conference on the results of Russian
diplomacy in 2018. January 16, 2019. URL: https://www.mid.ru/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/con-
tent/id/3476729?p_p_id=101_INSTANCE_cKNonkJE02Bw&_101_INSTANCE_cKNonkJE02Bw_languageId=en_GB (accessed
20.12.2020). S. Lavrov noted the problem of the rare use of the language of international law among the Western partners in
his speech at the international conference in New Delhi on January 15, 2020. See Foreign Minister Sergey Lavrov’s remarks
and answers to questions at a plenary session of the Raisina Dialogue international conference. January 15, 2020. URL: https://
www.mid.ru/en/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/3994885 (accessed 20.12.2020).
3 G7 Foreign Ministers Communiqué of 5 May 2021. Para. 7. URL: https://eeas.europa.eu/headquarters/headquarters-home-
page/97842/g7-foreign-and-development-ministers’-meeting-communiqué_en (accessed 15.05.2021).
4 Talmon S. Rules-based order v. international law?. – German Practice in International Law. January 20, 2019. URL: https://gpil.
jura.uni-bonn.de/2019/01/rules-based-order-v-international-law/ (accessed 20.12.2020).
5 US pushing West-centric concept of a “rules-based world order”: Russian Foreign Minister Sergey Lavrov. – The Economic
Times. October 28, 2020. URL: https://economictimes.indiatimes.com/news/international/world-news/us-pushing-west-
centric-concept-of-a-rules-based-world-order-russian-foreign-minister-sergey-lavrov/articleshow/78905855.cms?utm_
source=contentonterest&utm_medium=text&utm_campaign=cppst. (accessed 20.12.2020).

40
ВОПРОСЫ ТЕОРИИ МЕЖДУНАРОДНОГО ПРАВА
А.Н. Вылегжанин, Б.И. Нефедов,
Е.Р. Воронин, О.С. Магомедова, П.К. Зотова
Московский журнал международного права • 2 • 2021
6 Joint declaration by the President of the United States and the Prime Minister of the United Kingdom of 14 August 1941. URL:
https://www.un.org/en/sections/history-united-nations-charter/1941-atlantic-charter/index.html (accessed 14.12.2020).
7 United Nations: 2005 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons. April
29,2005. URL: https://www.un.org/en/conf/npt/2005/npt-conf2005-18%20english.pdf (accessed 14.02.2020).
8 Joseph S. Nye understood by it the ability to achieve the desirable result through the voluntary participation of allies, sym-
pathy and attractiveness, and not through coercion or handouts. Whereas the hard power should be understood as the ability
to coerce, conditioned by the military and economic might of the country [Nye 2004].
2. e reasons for emergence
and spread of the concept
Although the authorship of the wording “rules-
based order” remains unknown, the term denitely
appeared earlier than in the 90s of the XX century.
Hugo Grotius in his famous book “De jure belli ac pa-
cis” (published in 1646) wrote about “rules of moral
actions”. e founder of the international law teach-
ings explains that according to ‘the rules of reason-
able thinking’ any action, “depending on its corre-
spondence or not to the very wise nature” is qualied
as “morally shameful or morally necessary” [Grotius
1956: 70-71]. For the XVII century such understand-
ing of international law seems certainly reasonable.
But is the wording ‘rules-based order’ reasonable to-
day – in the period of the UN Charter?
From the very beginning, it is to be noted that
there is no universal legal document that would
manifest the universal approach to the “rules-based
order”. According to some theorists [Kundnani
2017:3], the unfolding of the liberal thought in terms
of order-building can be traced back to 1941 when
the Atlantic Charter
6
– a so-called founding docu-
ment of the “liberal international order” – was signed
as a joint declaration of the President of the USA
and the Prime Minister of the United Kingdom. e
Charter represents a body of principles which par-
ties of the agreement aspire to maintain, including
provisions concerning peace and security, safety
within national borders, the armation of peoples’
right to self-determination and also a block of provi-
sions aimed to contribute to economic prosperity by
establishing the fullest possible economic co-opera-
tion (e.g. trade barriers lowering) and preservation
of “global commons”. However, this agreement is far
from being agreed upon by all or most of the world’s
powers. Commenting this document, it is correctly
noted that it is the UN Charter that remains one of
the few multilaterally shared bases of the post-war
international order [Kundnani 2017:3].
e appeals to the concept “rules-based order”
became more frequent at the turn of the millen-
nium, especially on the margins of the UN during
the period of Ko Atta Annan's tenure as Secretary
General of this organization (1997-2006). In 2005,
Mr. Ahern, representative of Ireland, in his speech
at the Conference of the Parties to the Treaty on the
Non-Proliferation of Nuclear Weapons (as part of the
discussion on the Treaty's operation), declared that
“... for Ireland a rules-based international order and
strong international institutions were of fundamen-
tal importance”
7
.
Undoubtedly, there is a direct correlation be-
tween the spread and recognition of one or another
international legal concept and relevant international
relations. In this sense, it is no pure coincidence that
the concept “rules-based order” came forth at the
end of the Cold War. According to Zbigniew Brzez-
inski, aer the collapse of the Soviet Union, the Unit-
ed States has become the only military superpower
which no longer meets political opposition from any
states [Brzezinski 1997: 256]. Aer the “period of dé-
tente” and Cold War, this new period (Western states
dominance without Soviet bloc states) turned out to
be fertile ground for the ourishing political and le-
gal populism and gave rise (especially among mid-
dle-sized and small states of the world) to the illu-
sion of a universal triumph of so power, which may
not rely on hard rules of international law
8
. e new
ideas got widespread use in their optimistic interpre-
tations: the ideas that instead of the “right of military
power”, limited only to the right of avoiding global
war, the time has come for “the power of good law”,
basing only on military might of the “good United
States” and on geoeconomic factors, and the norms
of international morality, even if some of states turn
out to be ‘ugly’. It was presumed in the West that
the “good United States” will never organize coup
d’et at against a constitutional head of another state
(like against President Yanukovich in Ukraine); that
the US will never intervene into the territory of an-
other state (like Iraq); and the US will never strike
with rockets against a diplomatic mission of another
state (like against the diplomatic mission of Iran). So
‘rules-based order’ should have meant “good order”,
including ‘equal terms’ in relations among States, in-
cluding the US and other leading powers.
Still, the term remains far from being self-explan-
atory. e lack of uniform approach to the denition

41
Alexander N. Vylegzhanin, Boris I. Nefedov,
Evgeny R. Voronin, Olga S. Magomedova, Polina K. Zotova ISSUES OF THEORY OF INTERNATIONAL LAW
Moscow Journal of International Law • 2 • 2021
of the term leads to a variety of concepts concern-
ing the scope and meaning of the phrase. It is to be
noted that in this context such terms as “liberal inter-
national order”, “multilateral order”, “US-led global
order”, “democratic world order” are alternatively
used, oen as synonyms to the “rules-based order”
by foreign analysts when describing the exact con-
tent [Jain, Kroenig 2019: 11]. It is to be noted that
term “liberal” is used when an emphasis is made on
the leading and prevailing role of the USA in current
international order.
For instance, G. John Ikenberry, when dening
the “liberal international order” did nothing but
described it as an “open and rule-based interna-
tional order” that is “enshrined in institutions such
as the United Nations and norms such as multilat-
eralism” [Ikenberry 2011a:56]. ere still remains
uncertainty regarding such feature of the order as
“liberal”, let alone the evident denite fallacy in the
denition given by Ikenberry. It is unclear whether
“liberal” refers to the liberalism in the political di-
mension (in opposing to authoritarianism), or in the
economic dimension (in opposition to the concept of
protectionism), or in terms of international relations
(contrary to realism policy). According to one of the
theorists, the “liberal international order” encom-
passes all of the three mentioned aspects [Kundnani
2017:1]. Moreover, the current order is believed to
be made up of diverse suborders: economic, security,
and political. All of these enshrine “varying breadths
of membership, levels of legitimacy, motivating log-
ics, and eects on state behaviour” [Mazarr et al.
2016: xi].
Alongside admitting the ambiguity of the phrase
“liberal international order” former Dean of the Har-
vard's Kennedy School of Government J. Nye claims
the order “was never global and not always very liber-
al” [Nye 2019: 71]. Professor J. Nye himself, however,
adds more ambiguity claiming that the order in ques-
tion has four major strands. Chronologically, the rst
strand of the rules-based order is a particular form of
international economic relations, creation of which
can be traced back to the Bretton Woods conference,
where such liberal economic institutions as the In-
ternational Monetary Fund and the International
Bank for Reconstruction and Development were
conceived of. As a matter of fact, the economic sub-
order is usually meant when the rules-based order is
described as open. Charters
9
of the two intergovern-
mental economic organizations serve as a legal basis
for this strand as well as the WTO agreements
10
that
made free trade truly global round by round. Docu-
ments mentioned above were designed not only to
promote free movement of goods and services but
also to enable international nancial ows and thus
propel global economic growth. According to J. Nye,
the second strand – a security one followed the rst
as the creation of the United Nations marked another
step in international order building. In these aspect
agreements on arms control and limitation of weap-
ons proliferation were later negotiated. Some analysts
emphasize the security aspect when distinguishing a
rules-based order from the one where states acts are
motivated simply by power [Ikenberry 2011b:XII].
As a matter of fact, security suborder is said to have
evolved over time once established in Yalta, then by
rearming the principle of borders’ inviolability and
giving rise to what is now known as the Organisation
for Security and Cooperation in Europe, and nally
relying upon the terms of Charter of Paris for a New
Europe, in which democracy was declared to be “the
only system of government of our nations”
11
.
e third strand, as asserted by J. Nye, concerns
human rights and liberal political values that were
incorporated in the United Nations Charter and
later enumerated in Universal Declaration of Hu-
man Rights adopted by the United Nations General
Assembly in 1948. e UN Charter document “re-
armed faith in fundamental human rights, and
dignity and worth of human person” as well as com-
mitted all member states to promote and foster “uni-
versal respect for, and observance of, human rights
and fundamental freedoms for all without distinction
as to race, sex, language, or religion”
12
. However, this
suborder is acknowledged to have taken “root more
slowly” than the others, remaining to a great extent
9 Articles of Agreement of the International Monetary Fund and Articles of Agreement of the International Bank for Recon-
struction and Development of 27 December 1945. URL: https://treaties.un.org/doc/Publication/UNTS/Volume%202/v2.pdf
(accessed 28.12.2020).
10 Marrakesh Agreement establishing the World Trade Organization (with nal act, annexes and protocol) of 15 April 1994. URL:
https://treaties.un.org/doc/Publication/UNTS/Volume%201867/volume-1867-A-31874-English.pdf (accessed 28.12.2020).
11 Charter of Paris for New Europe of 21 November 1990. URL: https://www.osce.org/les/f/documents/0/6/39516.pdf (ac-
cessed 28.12.2020).
12 Charter of the United Nations of 24 October 1945. URL: https://www.un.org/en/about-us/un-charter/full-text (accessed
28.12.2020).

42
ВОПРОСЫ ТЕОРИИ МЕЖДУНАРОДНОГО ПРАВА
А.Н. Вылегжанин, Б.И. Нефедов,
Е.Р. Воронин, О.С. Магомедова, П.К. Зотова
Московский журнал международного права • 2 • 2021
declaratory during the Cold War period [Ikenberry
2011a:56].
According to Prof. Nye the last element of the
rules-based order is aimed at protection of “global
commons”, United Nations Convention on the Law
of the Sea is regarded as one of the relevant docu-
ments along with agreements that deal with climate
change issues, space and Antarctica.
For instance, according to Prof. Ikenberry such
“rules-based order” is comprised of: “(1) shared
agreement about the rules of the game within the
political order; (2) the establishment of rules and
institutions that bind and set authoritative limits on
the exercise of power; (3) a high degree of institu-
tional autonomy from special interests; and (4) the
entrenchment of these rules, principles, and institu-
tions within a wider and relatively immutable po-
litical system” [Ikenberry 2001:30-31]. It is the no
coercive and consensual nature of the order that
diers it from alternative forms of order. e author
admits that “the current order” is stable and resilient
because it is recognised as legitimate by all its mem-
bers [Ikenberry 2001:52]. e post-war international
order is characterized by other authors as based on
“core principles” as “economic stability, nonaggres-
sion, and coordinated activity on shared challenges”
[Mazarr et al. 2016: 13]. e authors do not bother,
however, to consider in concreto whether these prin-
ciples are already norms of international law.
is is how the contemporary concept “rules-
based order” crystallized.
e attractiveness of the concept “rules-based in-
ternational order”, however, is explained by the fact
that, being born in political discourse, it remains
free from the formal legal requirements that con-
stitute the proper normativity of international law,
and at the same time it is associated with the ideal
all-encompassing “natural morality” [Koskenniemi
2006:17]. For a number of authors, the emergence of
the concept can be perceived as a by-product of the
revival of the natural law approach in international
legal discourse [Koskenniemi 2009; Hall 2011]. Fur-
ther analysis shows that this understanding has also
turned out to be far from the reality.
First, the concept “rules-based order”, because of
its ambiguity noted above, can’t be qualied as an in-
stitute of the current international law. is notion
does not have universal recognition, it cannot be
considered as part of the existing international legal
“adaptation” due to the lack of the current normative
content. If, according to H. Kelsen, “international law
obliges and empowers the state” [Kelsen 2015: 221]
then self-declared so and ambiguous rules are null
and void; such rules do not establish concrete conse-
quences for states in case of their failure to observe
these rules. e absence of integral legal content does
not allow this concept right now to develop even to
the level of international legal teachings within the
meaning of Article 38 of the Statute of the Interna-
tional Court of Justice.
Second, lacking universal recognition of legiti-
macy, due to incompleteness and ambiguity of the
“substantive attributes” of the declared order, the
concept “rules-based international order” can hardly
be considered as a valid idea de lege ferenda.
e concept “rules-based international order” is
today legally “spineless” and unviable. at does not
mean, however, that the concept has no perspective
to inuence the existing international law. Moreo-
ver, an attractive form and “fresh words” without a
rigid substantive framework contributes to the wide
spread of the concept at the political level, even if un-
derstanding of the concept is non-consistent.
3. e problem of non-consistent understanding
Without the relevant support in the universal in-
ternational treaties, solid doctrinal basis, the concept
“rules-based order” can acquire completely dier-
ent (if not contradictory) meanings depending on a
topic of the discussion and intentions of speakers. It
is noteworthy that the concept “rules-based order”
is addressed by representatives of various states, and
even more remarkable, in a wide variety of contexts.
Let us examine some examples.
Western Europe. On March 16, 2004 Brian
Cowen, the Minister of foreign aairs of Ireland in
his speech at the disarmament conference in Geneva
stated as follows: “Ireland’s approach to disarmament
is rooted in a rm conviction that multilateral coop-
eration is in the interest of all and most particularly
serves the interests of smaller States who, lacking
military power, must rely on building and supporting
a strong rules-based system… e European Union,
over which Ireland is honored to preside at present,
has put a commitment to eective multilateralism at
the center of its common foreign and security policy.
A rules-based international order and strong inter-
national institutions are of fundamental importance
to the European Union”
13
. us, the speaker probably
13 UN Conference on Disarmament. Final record of the hundred and fty-rst plenary meeting. March 16 , 2004. URL: https://
undocs.org/CD/PV.951 (accessed 14.02.2020).

43
Alexander N. Vylegzhanin, Boris I. Nefedov,
Evgeny R. Voronin, Olga S. Magomedova, Polina K. Zotova ISSUES OF THEORY OF INTERNATIONAL LAW
Moscow Journal of International Law • 2 • 2021
uses the concept as reecting the collective security
system based on rules of international law, which is
supported by the coordinated eorts of the Europe-
an Union, though (for some reasons) without direct
references to the UN Charter as the major source of
modern international law.
Russia. Lately, Russian Foreign Minister Sergey
Lavrov has numerously drawn the international
community’s attention to a currently widely used
term “rules-based order”. Every time the Minister ad-
dresses the issue he objects to using this terminology
in formal international documents as well as inter-
national discourse due to several reasons. According
to Lavrov’s remarks and answers to questions dur-
ing the meeting with members of the Association of
European Businesses in Russia on October 5, 2020,
when only becoming part of the ocial discourse
some three or four years ago, the term “rules-based
order” was said to be used as a synonym for interna-
tional law by Western powers in order to introduce
“some fresh language”
14
. However, as maintained by
the Russian Federation, traditional norms, princi-
ples, and mechanisms of international law are now
undermined and replaced step by step by some non-
universal rules, which are not only uncodied but
also created on a unilateral basis without consensus
intrinsic to international law.
e allegation stated above manifests itself in two
areas where the system established aer World War
II is being eroded. e rst aspect where the re-writ-
ing of generally accepted norms of international law
takes place concerns the so-called process of exist-
ing international organisations’ secretariats’ privati-
sation. e most vivid example is the Organisation
for the prohibition of Chemical Weapons (OPCW),
which is one of the most universal organisations.
It is based on the Chemical Weapons Convention
(CWC)
15
, which was adopted unanimously (i.e. the
only possible way any convention can be adopted)
and further ratied by 193 countries. Notwithstand-
ing the fact that Convention and accordingly Or-
ganisation were created mainly to “address clearly
dened tasks of technical assistance to national pro-
grammes of destructing chemical weapons’ stock-
piles”
16
, attempts made by Great Britain and other
states to expand the Organisation’s mandate by as-
signing OPCW Secretariat (which is of strictly tech-
nical nature) with attributive power to identify the
perpetrators responsible for the use of chemical
weapons and carry out the attribution succeeded at
the Fourth Special Session of the Conference of the
States Parties in 2018
17
. When in need of expand-
ing Organization’s mandate, it is always necessary to
amend the Convention it is based upon according
to amending provisions. In ocial Statement of the
Republic of Burundi at the Fourth Special Session
Burundi Delegation questioned legal grounds for the
creation of attributive mechanism within the OPCW,
which mission is mainly technical, as well as recalled
that, unlike States, international organizations, albeit
being subjects of international law, do not possess
universal legal personality which leads to conclu-
sion that “they have the right to act only within the
mandate clearly stipulated in their founding docu-
ments”
18
. “Neither the Conference, nor the Executive
Council, nor the Technical Secretariat has a mandate
that would allow it to assign attribution for violat-
ing the Convention”
19
. So according to international
law, the provisions of the Convention itself had to be
amended to vest attributive powers in Organisation
14 Foreign Minister Sergey Lavrov’s remarks and answers to questions during the meeting with members of the Association of
European Businesses in Russia. October 5, 2020. URL: https://www.mid.ru/en/foreign_policy/news/-/asset_publisher/cKNon-
kJE02Bw/content/id/4368405 (accessed: 28.12.2020).
15 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their
Destruction. of 3 September 1992. URL: https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-
3&chapter=26 (accessed 28.12.2020).
16 Russian Embassy in the UK Press Ocer’s reply to a question on assigning attributive functions to the OPCW Technical Sec-
retariat to identify those responsible for the use of chemical weapons. – Embassy of the Russian Federation to the United King-
dom of Great Britain and Northern Ireland. June 28, 2016. URL: https://www.rusemb.org.uk/fnapr/6571 (accessed 28.12.2020).
17 OPCW: Decision Addressing the Threat from Chemical Weapons Use. The Fourth Special Session of the Conference of
the States Parties. June 27, 2018. C-SS-4/DEC.3. URL: https://www.opcw.org/sites/default/les/documents/CSP/C-SS-4/en/
css4dec3_e_.doc.pdf (accessed 28.12.2020).
18 OPCW: Republic of Burundi Statement by Her Excellency Ambassador Vestine Nahimana, Permanent Representative to the
Organization for the Prohibition of Chemical Weapons (OPCW) at the Fourth Special Session of the Conference of States Par-
ties to the Convention on the Prohibition of Chemical Weapons. June 26, 2018. URL: https://www.opcw.org/sites/default/les/
documents/CSP/C-SS-4/en/Burundi_National_Statement_English.pdf. (accessed 28.12.2020).
19 OPCW: Statement by Mr. G.V. Kalamanov Head of the Delegation of the Russian Federation at the Fourth Special Session
of the Conference of the States Parties. June 26, 2018. URL: https://www.opcw.org/sites/default/les/documents/2018/08/
css4nat40%28e%29.pdf (accessed 28.12.2020).

44
ВОПРОСЫ ТЕОРИИ МЕЖДУНАРОДНОГО ПРАВА
А.Н. Вылегжанин, Б.И. Нефедов,
Е.Р. Воронин, О.С. Магомедова, П.К. Зотова
Московский журнал международного права • 2 • 2021
legitimately in line with Article XV of the Conven-
tion. What was done instead –the decision was taken
at a special session of the Conference by less than
half member states - is “an obvious abuse of the rules
of procedure, undermining the spirit of consensus
of the global disarmament and non-proliferation
mechanisms” as Press Ocer of the Russian Embas-
sy in the UK puts it. What is more, as evidenced by
the travaux préparatoires of the Chemical Weapons
Convention, “any provisions which might have been
interpreted as conferring on the organs of the OPCW
attributive powers were intentionally excluded from
the dra text or reformulated accordingly”
20
, which
can be construed to provide for obligatory amend-
ing process in case of conferring attributive powers
to the OPCW.
As underlined in Statement by the Head of the
Delegation of the Russian Federation at the Fourth
Special Session of the Conference of the States Par-
ties
21
, not only the amending provisions stipulated
in Article XV of the Convention were bypassed,
but also provisions of the UN Charter regarding
UN Security Council’s prerogative to take coercive
measures, attribution being one of its elements. e
UN Security Council remains the only international
body, besides international courts, which is entitled
to attribute guilt to perpetrators on the international
level and take punitive measures as enshrined in the
UN Charter. As long as the decision of the Confer-
ence in question clearly deviates from international
law it constitutes an instrument of the rules-based
order in Russian Foreign Minister’s opinion
22
. In the
light of the above Russia calls for the “unwavering
compliance with all existing rules when carrying out
fact-nding activities in relation to the use of chemi-
cal weapons”
23
.
Another area that prompts concerns that the cur-
rent international system based on international law
is being eroded refers to situations when some mat-
ters characterized by Sergei Lavrov as “inconvenient”
are moved outside the United Nations system. e
most vivid illustration of this process is the estab-
lishment of the International Partnership against
Impunity for the Use of Chemical Weapons headed
by France: the question is why matters at hand can-
not be discussed on the side-lines of the OPCW. e
creation of a distinct organization occupied with
overlooking the same aspects as already existing
one does – OPCW is explained by the need to group
“like-minded states”. According to Russian Foreign
Minister, the nal goal of this acts is to make po-
liticized decisions in a narrow circle, that would not
otherwise be adopted in organizations characterized
by wider representation, and later present these deci-
sions as an example of multilateralism
24
.
Latin America. At the 62nd session of the UN
General Assembly in 2007, Charles Savarin, the Min-
ister for Foreign Aairs, Trade, Labor and Civil Ser-
vice of the Commonwealth of Dominica declared:
«Dominica believes that it is only a strong United
Nations, sensitive to the variable geometry of its own
complex construction, that can serve as the founda-
tion of our shared ambitions for eective multilater-
alism and a rules-based international order»
25
. In this
case the concept is used in the sense of the interna-
tional legal order with the UN as the pivotal institute
of this order.
Africa. On October 29, 2009 Dire Tladi, the rep-
resentative of South Africa, during the discussion
of the Report of the International Court of Justice
at the 64th session of the UN General Assembly re-
marked: «My delegation is particularly pleased to
20 OPCW: Republic of Burundi Statement by Her Excellency Ambassador Vestine Nahimana, Permanent Representative to the
Organization for the Prohibition of Chemical Weapons (OPCW) at the Fourth Special Session of the Conference of States Par-
ties to the Convention on the Prohibition of Chemical Weapons. June 26, 2018. URL: https://www.opcw.org/sites/default/les/
documents/CSP/C-SS-4/en/Burundi_National_Statement_English.pdf. (accessed 28.12.2020).
21 OPCW: Statement by Mr. G.V. Kalamanov Head of the Delegation of the Russian Federation at the Fourth Special Session
of the Conference of the States Parties. June 26, 2018. URL: https://www.opcw.org/sites/default/les/documents/2018/08/
css4nat40%28e%29.pdf (accessed 28.12.2020).
22 Foreign Minister Sergey Lavrov’s remarks and answers to questions during the meeting with members of the Association of
European Businesses in Russia. October 5, 2020. URL: https://www.mid.ru/en/foreign_policy/news/-/asset_publisher/cKNon-
kJE02Bw/content/id/4368405 (accessed: 28.12.2020).
23 OPCW: Statement by Mr. G.V. Kalamanov Head of the Delegation of the Russian Federation at the Fourth Special Session
of the Conference of the States Parties. June 26, 2018. URL: https://www.opcw.org/sites/default/les/documents/2018/08/
css4nat40%28e%29.pdf (accessed 28.12.2020).
24 Foreign Minister Sergey Lavrov’s remarks and answers to questions during the meeting with members of the Association of
European Businesses in Russia. October 5, 2020. URL: https://www.mid.ru/en/foreign_policy/news/-/asset_publisher/cKNon-
kJE02Bw/content/id/4368405 (accessed: 28.12.2020).
25 UN General Assembly: 15th plenary meeting. October 2, 2007. URL: https://undocs.org/en/A/62/PV.15 (accessed
14.02.2020).

45
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Evgeny R. Voronin, Olga S. Magomedova, Polina K. Zotova ISSUES OF THEORY OF INTERNATIONAL LAW
Moscow Journal of International Law • 2 • 2021
hear of the frequent visits being made to the Court
by national judges, senior legal ocials, researchers
and other members of the legal profession. We be-
lieve that it can only strengthen the understanding
of and appreciation for international law, which is an
important tool towards the creation of a rules-based
international system»
26
. Hereby, the South African
speaker presented the “rules-based international or-
der” as future, global order, achievable in compliance
with the current international law with an emphasis
on the role of the International Court of Justice in
strengthening the international law.
Asia. At the plenary meeting of the 60th session of
the UN General Assembly in 2005 Manmohan Singh,
the Prime Minister of India, made a point: “All of us
assembled here recognize that the United Nations is in
need of urgent and comprehensive reform. e man-
agement of global interdependence requires strong
international institutions and a rules-based multilat-
eral system. e reform of the United Nations must
be based on that principle”
27
. In the context of the call
for reforming the UN organization, the concept seems
to be used here as meaning a more perfect system of
multilateral regulation of international relations.
Notwithstanding being described by western
scholars as a “revisionist” power, China through its
ocial representatives claims its respect for the con-
cept “rules-based order”. In 2018 the Foreign Minis-
ter of the People’s Republic of China at the meeting
with the United Nations General Assembly President
Maria Fernanda Espinosa declared that “every nation
should protect the rules-based international order,
adhere to the aims and principles of the UN Charter,
and resolve dierences through dialogue and consul-
tation”
28
. So, for China “rules-based order” does not
contradict the international order based on the UN
Charter. In the Joint statement following the 20
th
EU-
China Summit held in 2018 the parties (China and
the European Union) “rearmed their commitment
to multilateralism and the rules-based international
order with the United Nations at its core”
29
.
Australia. e concept “rules-based order” has
become one of the key points in Australian interna-
tional policy since 2008. Used for the rst time by
Australia’s Prime Minister Kevin Rudd in 2008
30
,
the concept “rules-based order” is part and parcel
of Australian policymakers’ discourse. For instance,
the 2016 Defence White Paper mentions the term at
hand 46 times; rules-based order is dened in the
document as “a shared commitment by all countries
to conduct their activities in accordance with agreed
rules which evolve over time, such as international
law and regional security arrangements”
31
. Aus-
tralian Government consistently advocates for the
promotion and protection of the stable rules-based
order and emphasizes its importance in its docu-
ments, in particular, pertaining to the South China
Sea dispute. In this regard Australia’s Foreign Min-
ister J. Bishop (at that time) reminded that all states
involved in this dispute “have beneted enormously
from the rules-based order” and called for the ad-
herence to international law
32
. Ever since Austral-
ian policymakers have numerously addressed rules-
based order concept, and the 2018 Australia’s media
release (dedicated to the Special Summit between
Australia and the leaders of the Association of the
Southeast Asian Nations) underlines that Australia is
determined to uphold its “commitment to the rules-
based order and international law in the region,
including the South China Sea”
33
. Mr. Quinlan, the
26 UN General Assembly: Sixty-fourth session 30th plenary meeting. October 29, 2009. Report of the International Court
of Justice. URL: https://documentsdds-ny.un.org/doc/UNDOC/GEN/N09/583/51/PDF/N0958351.pdf?OpenElement (accessed
14.02.2020).
27 UN General Assembly: Sixtieth session 5th plenary meeting. September 15, 2005. URL: https://documents-ddsny.un.org/
doc/UNDOC/GEN/N05/511/72/-PDF/-N0551172.pdf?OpenElement (accessed 14.02.2020).
28 Li Keqiang Meets President of the 73rd UN General Assembly, María Fernanda Espinosa. August 8, 2018. (In Chinese). URL:
https://www.fmprc.gov.cn/web/wjdt_674879/gjldrhd_674881/t1584054.shtml (accessed 14.12.2020).
29 Joint statement of the 20th EU-China Summit. July 17, 2018. URL: https://eeas.europa.eu/delegations/china_en/48424/
Joint%20statement%20of%20the%2020th%20EU-China%20Summit (accessed 28.12.2020).
30 Scott B. But what does “rules-based order” mean?. – The Interpreter. November 2, 2020. URL: https://www.lowyinstitute.org/
the-interpreter/what-does-rules-based-order-mean (accessed 28.12.2020).
31 Australian Government: 2016 Defence White Paper. P.15. URL: https://www.defence.gov.au/whitepaper/Docs/2016-De-
fence-White-Paper.pdf (accessed 28.12.2020).
32 Bishop J. Australia Supports Peaceful Dispute Resolution in the South China Sea. July 12, 2016. https://www.foreignmin-
ister.gov.au/minister/julie-bishop/media-release/australia-supports-peaceful-dispute-resolution-south-china-sea (accessed
28.12.2020).
33 Turnbull M. Enhancing Regional Collaboration to Strengthen Our Security and Prosperity.” March 18, 2018..URL: https://
www.malcolmturnbull.com.au/media/enhancing-regional-collaboration-to-strengthen-our-security-and-prosperity- (ac-
cessed 28.12.2020).

46
ВОПРОСЫ ТЕОРИИ МЕЖДУНАРОДНОГО ПРАВА
А.Н. Вылегжанин, Б.И. Нефедов,
Е.Р. Воронин, О.С. Магомедова, П.К. Зотова
Московский журнал международного права • 2 • 2021
representative of Australia, speaking at the 52nd ple-
nary meeting of the 66th session of the UN General
Assembly on the issue of equitable representation on
and expansion of the UN Security Council, stated in
particular that «Australia’s own outlook on reform is
founded on the very simple premise that no country
should have a monopoly on power. We are commit-
ted to a rules-based international order that respects
international law, and we believe that the eective-
ness of such an order depends on the access and buy-
in of all Member States»
34
. Here, the representative
of Australia appeals to the concept in the sense of a
system of international relations which is based on
the international law. A “rules-based international
order” is interpreted in a similar way by the Parlia-
mentarians for Global Action (beneting from the
consultative status within the UN Economic and So-
cial Council
35
), but without expressis verbis reference
to international law.
Within the UN, the concept is used sometimes
to designate a certain branch of international law,
and sometimes – to designate norms which are dif-
ferent compared to those of international law. For
instance, the report of the UN Secretary General
“Unilateral economic measures as a means of politi-
cal and economic coercion of developing countries”
provides: “e comments of Member States gener-
ally expressed disagreement with the imposition
of unilateral economic measures as instruments of
political and economic coercion against developing
countries. Such actions are viewed as contrary to the
principles of the Charter of the United Nations, the
norms of international law and the rules-based mul-
tilateral trading system, which undermine the sover-
eign equality of States”
36
.
As we can see, due to dierent understandings of
the notion “rules-based order” (or rules-based sys-
tem) speakers can mean by this term: a) the world
order based on international law or b) something
which is dierent from the world order based on in-
ternational law, or c) the rules regulating certain areas
of international interstate relations (trade relations,
for example). Nevertheless, it is possible to identify
a common message in addressing this concept – the
desire to exclude the possibility of legitimizing ar-
bitrary actions and positions of some states in the
international arena by abusing the existing rules of
international law. In this case, the idea of a “rules-
based [international] order” is directed against nega-
tive unilateralism (even that of the United States,
the most powerful military state with number one
military budget in the world). Due to the fragmented
understanding of “rules-based order”, this positive
idea is easily subject to instrumentalization when a
strong international actor (like NATO bombarding
Belgrade) tries to establish an international “order”
that conforms exclusively to its current interests. is
observation can be conrmed by the practice of us-
ing the concept by the representatives of the United
States.
It might be suggested that the idea of the world
domination in the U.S. foreign policy dates back to the
time of the Monroe Doctrine (proclaimed in 1823),
and remains prevalent in modern history, which is
conrmed by the statement of Woodrow Wilson in
1917 (that the ag of the United States is “not the ag
of America, but of humanity”
37
). Consequently, in
the context of general American rhetoric, the notion
of the US rules-based order manifests itself in its de-
structive aspect – the goal of substituting for the cur-
rent international law and its core – the UN Charter.
Estonian jurist R. Müllerson gave a conceptual hard-
hitting assessment of the “world order” conceived
outside of legal terms. He notes “that Washington is
trying to impose, through military force or sanctions
against the disobedient, not the noble regulatory sys-
34 UN General Assembly: 52nd plenary meeting. November 9, 2011. URL: https://undocs.org/A/66/PV.52 (accessed 28.12.2020).
35 The organization's representatives explain the NPO's goal as follows: «PGA’s vision is to create a rules-based international or-
der for a more equitable, safe and democratic world, which is in line with the United Nations’ Millennium Development Goals.
See: UN. Economic and Social Council: Quadrennial reports 2002-2005 submitted through the Secretary-General pursuant to
Economic and Social Council resolution 1996/31. November 14, 2006.URL: https://documents-dds-ny.un.org/doc/UNDOC/
GEN/-N06/615/91/PDF/N0661591.pdf?OpenElement (accessed 14.02.2020).
36 UN General Assembly: Unilateral economic measures as a means of political and economic coercion against developing
countries. Report of the Secretary-General. July 27, 2009. URL: https://digitallibrary.un.org/record/662804/les/A_64_179-EN.
pdf (accessed 14.02.2020).
37 Thanksgiving Proclamation of Woodrow Wilson dated November 7, 1917. In fact, the US ag was taken as a model for
elaboration of the so-called “Humanity Flag – Auxilio Dei”, which also combines the national ags of the U.S. allies in the WWI,
the United Kingdom and France.

47
Alexander N. Vylegzhanin, Boris I. Nefedov,
Evgeny R. Voronin, Olga S. Magomedova, Polina K. Zotova ISSUES OF THEORY OF INTERNATIONAL LAW
Moscow Journal of International Law • 2 • 2021
tem that somehow worked even during the Cold War
[largely due to the existing balance of power], but
the so-called “rules-based” liberal world order, that
is, an order based on the rules of Washington and
not related to international law” [Müllerson 2020].
Of course, not all speakers cited above meant by the
concept “rules-based order” only “the rules of Wash-
ington”. However, a spectacular example of the U.S.
policy is given by Daniel B. Baer, the U.S. Ambassa-
dor, in 2016 in the context of the review of the 1996
OSCE Arms Control Framework: “Until the past few
years, the framework and elements of a rules-based
international order helped to preserve peace and
prosperity in the Euro-Atlantic area because they
espoused and defended key principles, such as the
right of states to choose freely whether to allow the
stationing of foreign forces on their territory”
38
. is
statement reduces the essence of American interest
in a rules-based order to the right to deploy U.S. mili-
tary bases in foreign territories.
In a broader concept, according to the United
States positions cited above, the establishment of a
“world order” depends entirely on the willingness
to promote American global goals with references
to international law or without such references and
even contrary to the principle of equality of states as
it is reected in the UN Charter. At the same time
these examples demonstrate that the concept “rules-
based order” is used not only with dierent mean-
ings, but also for dierent reasons. In other words,
the concept “rule-based order” in speeches of the
American politicians and in speeches of the politi-
cians from the non-aligned countries – are complete-
ly dierent concepts. In the U.S. rhetoric the concept
serves as a tool in the race for the U.S. ordering the
rest of the world how to behave (both at sea and on
land) whereas the spread and apparent support of
the concept by the developing countries is explained
rather by their interest in reforming the UN system,
and by their hope for increasing their inuence on
the nancial and economic governance of the world
aairs. Taking this into account, it is appropriate to
assess the scale of the problem of such dierent un-
derstanding, beginning with the scope of the alleged
order.
4. e scope of “rules-based order” in the absence
of its generally recognized denition
e contextual use of the concept does not clarify,
whether the international rules-based order is always
understood as the international order based on inter-
national law or something dierent.
On the one hand, using the concept as an inter-
changeable synonym for international law order, es-
tablished following the results of the Second World
War, one is free to imply the world legal order. But
there are obvious facts of violations by the U.S. of
such world legal order based on international law. In
Russian legal literature the following facts are listed
rst and foremost: the violation of the international
humanitarian law in 1945, when the United States
dropped atomic bombs on Japan; the violation of
the UN Charter when the United State invaded Vi-
etnam in 1960-s – 1970-s; the violation of the UN
Charter when the United States invaded Nicaragua,
etc [Narushenie SShA…1984]. ere are other ex-
amples, as evidenced by J. Ikenberry, that since the
establishment of the current international legal order
the United States have repeatedly acted in violation
of multilateralism by applying unilateral patterns in
their diplomatic, economic, and military policies –
namely, when the American government’s embrace
of free trade rules turned to be ambivalent in the
sense that while the USA championed the creation of
the WTO (one of the leading binding institutions),
the Washington itself neglected the spirit and fun-
damental purpose of organisation with its unilateral
trade policy [Ikenberry 2001:272]. Schweller nds
a problem at the core of the Ikenberry’s statement,
underlining that it is not attainable for institutions
both to restrain hegemons and to remain autono-
mous – they are either dependent on strong states
and, consequently, capable of binding weak ones or
independent of leading states and thus ineective in
“running their business” [Ikenberry 2001:182].
On the other hand, the ex-US ambassador in
Ukraine, William Taylor, alleges that Russia has
undermined international rules-based order: “e
Kremlin attacks the rules that guided [sic] relations
between nations since World War II”
39
. W.Taylor
38 OSCE: Revisiting the 1996 OSCE Framework for Arms Control. As delivered by Ambassador Daniel B. Baer to the Joint Ses-
sion of the Forum for Security Cooperation and the Permanent Council. October 19, 2016. URL: https://osce.usmission.gov/
revisiting-1996-osce-framework-arms-control-statement-joint-fsc-pc/ (accessed 14.02.2020).

48
ВОПРОСЫ ТЕОРИИ МЕЖДУНАРОДНОГО ПРАВА
А.Н. Вылегжанин, Б.И. Нефедов,
Е.Р. Воронин, О.С. Магомедова, П.К. Зотова
Московский журнал международного права • 2 • 2021
continued “… for centuries until 1945 … powerful
nations dominated and invaded less powerful na-
tions … nations created spheres of inuence that op-
pressed their neighbors, leading to wars and suer-
ings. is is how the Russian Empire and the Soviet
Union conducted international relations…”
40
. Here-
by, the politician accuses the USSR and Russia with-
out bothering to provide neither relevant facts nor
legal arguments, while ignoring even recent U.S. vio-
lations of international law, the most evident for the
developing states – invading sovereign Iraq and kill-
ing its president S. Hussein. e US ocial also hides
the fact that it is the US Administration that organ-
ized coup d’Etat in Kiev in 2014 (as a result of which
the constitutionally elected President of Ukraine Ya-
nukovich was replaced by the ‘acting president’ gov-
erned from Washington and the former territory of
the Ukrainian Soviet Republic was divided) [Vyleg-
zhanin, Kritsky 2014]. Furthermore, the US speaker
reveals his nihilist attitude to international law exist-
ing before 1945. By that time international law man-
aged to pass through milestones in the development
of the world legal order, including the Westphalian
world order (1648-1815); the Vienna world order
(1815-1871); the Versailles world order (1919-1945).
Denitely, with the evolution of the system of inter-
national relations, the former norms of the “law of
war” (legitimizing territorial conquests and the im-
plementation of colonial policy) have now become
obsolete. e renewal of the international legal sys-
tem is due to the evolution of the values, recognized
by the international community of states, which per
se does not deny the adequacy to the international
legal system of some values that exist in international
relations from the time immemorial.
As summarized by S. Patrick, the rules-based or-
der presumes that “all sovereign states are entitled
to political independence, territorial integrity, and
freedom from intervention; the use of force, except
in cases of self-defense, requires collective authoriza-
tion by the UN Security Council (….); vessels from
all states are free to traverse the open ocean with-
out hindrance; the commerce of all nations should
be accorded non-discriminatory treatment; and all
peoples should be entitled to political self-determi-
nation” [Patrick 2016:11-12]. Again, the question
arises, because these ideas are already better reected
in the international order based the UN Charter.
S.Van Nieuwenhuizen gives a complex and rather
broad denition of the rules-based order that tends
to embrace all of the elements and features that sub-
stantially characterize order in place: “e interna-
tional order is generally understood to be comprised
of institutions, international law and norms provid-
ing for the ordered political, military and economic
interaction of states” [Nieuwenhuizen 2019:184].
e words “international law and norms” in this con-
text look strange. Some authors claim that the rules-
based system includes also informal rules alongside
with formal ones [Jain, Kroenig 2019: 11].
According to some documents, the sources of
“rules-based order” are identied with the sources
of international law. In the Joint Statement the Brit-
ish Foreign Minister, Boris Johnson, French Foreign
Minister, Jean-Yves Le Drian, German Foreign Min-
ister, Heiko Maas and US Secretary of State John Sul-
livan on 4 April 2017 (in response to a chemical at-
tack in a Syrian city Khan Shaykhun) declared: “Each
time a chemical weapon is used, it undermines the
global consensus against its employment. Further,
any such use in clear violation of the Chemical
Weapons Convention gravely undermines the rules-
based international order”. In this case the invocation
of the concept addresses violations of the norms of
international humanitarian law, which prohibit the
use of chemical weapons; so, in this case the “inter-
national rules-based order” is understood as an in-
ternational order based on modern international law
(again without explicit references to it).
At the same time, for some politicians it is un-
clear whether there exist rules for specic “areas” of
the international order or only rules for the world
order as a whole. us, the representative of Sweden,
Mr. Bennwick, who, discussing the promotion and
protection of human rights at the 64th session of the
UN General Assembly, noted: “e European Un-
ion supported respect for rules-based international
systems in all elds”
41
. e representative of Ghana,
Mr. Christian, speaking at the 64th session of the UN
General Assembly on nancing for development,
39 Eks-posol SShA v Ukraine Uil'yam Teilor ob"yasnil Pompeo, chto SShA dolzhny sdelat' dlya Ukrainy: detal [Ex-US Ambassa-
dor in Ukraine William Taylor explained Pompeo what the US should do for Ukraine]. – Dialog.UA. January 29, 2020. (In Russ.).
URL: https://www.dialog.ua/world/200040_1580246267 (accessed 14.02.2020).
40 Ibidem.
41 UN General Assembly: Sixty-fourth session. February 3, 2010. URL: https://documents-dds-ny.un.org/doc/UNDOC/GEN/
N09/613/63/pdf/N0961363.pdf?OpenElement (accessed 14.02.2020).

49
Alexander N. Vylegzhanin, Boris I. Nefedov,
Evgeny R. Voronin, Olga S. Magomedova, Polina K. Zotova ISSUES OF THEORY OF INTERNATIONAL LAW
Moscow Journal of International Law • 2 • 2021
underlined: “e international community should
more actively pursue the development of an agreed
rules-based approach to sovereign debt workouts”
42
.
e representative of the Islamic Republic of Iran,
Mr. Dehghani, in turn, stated that “trade was a vital
tool to provide long-term sustainable growth. In or-
der to fully utilize its potential, it was important to
uphold a universal, rules-based, open, non-discrimi-
natory, depoliticized and equitable multilateral trad-
ing system that contributed to growth and develop-
ment, especially for developing countries”
43
. Notably
the need to “support a rules-based trading system”
has been repeatedly emphasized by representatives of
many countries: the representative of South Africa,
Mr. Mashabane
44
, the representative of ailand,
Ms. Sujira
45
, the representative of Nigeria, Mr. Eji-
naka
46
, the representative of Qatar, Mr. Al Sada
47
, and
others. Quite oen speculations on an international
rules-based system can be found in international
practice in relation to human rights
48
, disarmament,
non-proliferation and arms control
49
, reforms of the
UN Security Council
50
, etc.
e widespread political fashion for the use of the
concept by representatives of various states leads to
the formation of a “soap bubble”, when states associ-
ate many hopes with a “rules-based international or-
der”. us, the representative of the Philippines, Mr.
De Vega, speaking in the second UN committee on
October 4, 2011, stated that “All those challenges [em-
powerment of peoples to prosper, natural disasters,
food security, and ongoing economic crisis] would
be overcome only when international relations were
rmly anchored in a rules-based system”
51
. Again, he
does not explain what “a rules-based system” is; we
can only assume that with this wording, the speaker
expressed his hope for the international order based
on rules which are agreed upon between States (that
is – rules of international law).
Some researchers go further, suggesting that the
concept may imply several “international systems
based on rules”. For instance, M. Chalmers, an ex-
pert at the British Royal United Services Institute for
Defence and Security studies, suggested the exist-
ence of four such systems that serve as the pillars of
the international order (“four-pillared international
order”): the universal security system; the universal
economic system; the western system and the system
of major power relations and bargains. According to
him, the rules that make up each of the systems re-
ect the results of power-based bargains [Chalmers
2019: 3]. But do the rules of these systems by them-
selves have a positive legal value acceptable to the
community of States as a whole?
According to M. Chalmers, the “classical” division
of states into those which comply with the norms of
international law and those which do not comply is
42 UN General Assembly Sixty-fourth session. 77th plenary meeting. March 23,2010. URL: https://documents-dds-ny.un.org/
doc/UNDOC/GEN/N10/286/18/pdf/N1028618.pdf?OpenElement (accessed 14.02.2020).
43 Ibidem.
44 UN General Assembly: Sixty-eighth session. Summary record of the 21st meeting October 24, 2013. URL: https://docu-
ments-dds-ny.un.org/doc/UNDOC/GEN/N13/529/59/pdf/N1352959.pdf?OpenElement (accessed 14.02.2020).
45 Ibidem.
46 Ibidem.
47 Ibidem.
48 UN General Assembly: Summary record of the 44th meeting, New York. November 19, 2009. Agenda item 69: Promotion and
protection of human rights. Mr. Bennwick (Sweden). URL: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N09/613/63/
pdf/N0961363.pdf?OpenElement (accessed 14.02.2020).
49 UN Conference on Disarmament: Final record of the one thousand two hundred and thirty-rst plenary meeting. August
4, 2011. URL: https://documents-ddsny.un.org/doc/UNDOC/GEN/G12/-611/42/PDF/G1261142.pdf?OpenElement (accessed
14.02. 2020). See also: UN General Assembly Sixty-second session. First Committee 7th meeting, October 16, 2007. General
debate on all disarmament and international security agenda items. URL: https://documentsddsny.un.org/doc/UNDOC/GEN/
N07/542/80/PDF/N0754280.pdf?Open-Element (accessed 14.02.2020).
50 UN General Assembly: Sixtieth session. 5th plenary meeting. September 15, 2005. Mr. Singh (India). URL: https://docu-
ments-dds-ny.un.org/doc/UNDOC/GEN/-N05/511/72/PDF/N0551172.pdf?OpenElement (accessed 14.02.2020); See also: UN
General Assembly: The rule of law at the national and international levels. Letter dated 18 April 2008 from the Permanent
Representative of Austria to the United Nations addressed to the Secretary-General. URL: https://documents-dds-ny.un.org/
doc/UNDOC/GEN/N08/330/-21/PDF/N0833021.pdf?OpenEle-ment (accessed 14.02.2020); UN General Assembly Sixty-sec-
ond session. October 16, 2007. General debate on all disarmament and international security agenda items. Mr. Kariyawasam
(Sri Lanka). URL: https://documentsddsny.un.org/doc/UNDOC/GEN/N07/542/-80/PDF/N0754280.pdf?OpenElemnt (accessed
14.02.2020).
51 UN General Assembly: Sixty-sixth session. Second Committee. Summary record of the 4th meeting. November 17, 2011. URL:
https://documents-ddsny.un.org/doc/UNDOC/GEN/N11/528/67/PDF/N11-52867.pdf?OpenElement (accessed 14.02.2020).

50
ВОПРОСЫ ТЕОРИИ МЕЖДУНАРОДНОГО ПРАВА
А.Н. Вылегжанин, Б.И. Нефедов,
Е.Р. Воронин, О.С. Магомедова, П.К. Зотова
Московский журнал международного права • 2 • 2021
an oversimplication of the real state of aairs, where
the balance of forces in one system aects the "legiti-
macy" of the state's behavior in another system. For
example, the key principles of the universal security
system are the principles of international law, em-
bodied in the UN Charter in 1945, such as the right
to self-determination, the prohibition of aggression,
the sovereign equality of states, etc. is universal
system is in constant tension with the selective West-
ern “liberal order” system described above. Although
de facto the system of Western values is becoming
dominant in the western world (especially with the
process of globalization), it cannot take legal priority
in global security issues, because of the existing rules
of the universal security system, as it is maintained
by the UN Security Council, and by a number of rel-
evant international treaties on the arms limitation,
etc.
In this context it is logical to assume that the ba-
sis for dierent understandings of the concept “rules-
based order” and the reason for free use of this legal
neologism (attractive by wording and indenite in
content), is the lack of a clear understanding what
exact rules constitute the foundation of the concept
“rules-based order”.
5. e problem of unclear content of the concept
As was shown above, the adherents of the
concept “rules-based order” cannot agree on the key
question – what concrete “rules” serve as a basis for
this order.
Some of them do not see the dierence between
these “rules” and the norms of international law
52
.
Moreover, the opinion that the rules of interna-
tional legal order and international legal norms are
identical is widespread not only among public of-
cials, and also among international experts. For
instance, R. Allison (the British political analyst) ar-
gues that “norms and rules are ultimately vested in
international law, which is contested but is still the
foundation of global order”. erefore, according to
R. Allison, Russia's objections to the imposition of
“rules-based international order” are interpreted not
only as an opposition between the observance of the
rules and the operation of law, but as a “revisionist
approach of Russia” to international law in general
[Allison 2020:981-983]. e scholar calls it “the neo-
revisionist argument” under which he means “the
image of Russia as a status quo power, drawn into
qualied revisionist actions in reaction to the ear-
lier Western practice of liberal interventionism and
concerns about Moscow’s agency in interpreting
international law and norms” [Allison 2020:980].
American diplomat and independent expert of the
Carnegie Endowment for International Peace Ph.
Rembler believes that “reducing” the foundations of
international law to the provisions of the UN Charter
and Security Council resolutions allows to a state to
“reject on principle commitments regarding human
rights and democratic governance”
53
. At the same
time, it should be noted that the Russian prevailing
legal teachings do not try to “reduce” the principles
of international law to the principles set forth in the
UN Charter; however, they do emphasize the sig-
nicance of the UN Charter among other sources of
international law
54
. Dutch researchers, M. Gro and
J. Larik, share the same opinion on the foundations
of contemporary international legal order: “ere is
today an overwhelming commitment to the rules-
based order established in 1945” [Gro, Larik 2020].
Other publicists do not consider as identical the
rules which are meant within the concept “rules-
based order” and the norms of international law;
however, they nd “no clear or agreed set of goals,
methods, or limits”, which would constitute such or-
der [Kissinger 2015:10]. Using some norms of inter-
national law as a pretext, they include into the rel-
evant “order” within the concept such “rules” that do
not have international legal character
55
.
ese notwithstanding calls to “play by the rules”
are more and more oen heard from international
tribunes, addressed to Russia. For example, in 2006
Condoleezza Rice, the US Secretary of State, claimed
that “Russia must play by ... the rules”
56
, and in 2008
she spoke about the inadmissibility of the situation
52 See, for example: [The Contribution…2019].
53 Remler Ph. Russia at the United Nations: Law, Sovereignty, and Legitimacy. – Carnegie Endowment for International Peace.
January 2020. // URL: https://carnegieendowment.org/2020/01/22/russia-at-united-nations-law-sovereignty-and-legitimacy-
pub-80753 (accessed 20.12.2020).
54 See: Mezhdunarodnoe pravo v 2 ch. Chast' 1: uchebnik. Otv. red. A. N. Vylegzhanin. 4-e izd [International Law. In 2 parts. Part
1: a textbook. Ed. by A.N. Vylegzhanin. 4th ed.]. Moscow: Yurait Publ.2021. P.73-81. (In Russ.).
55 See, for example: [Mazarr et al. 2016:7; United Nations Association of Australia... 2015:7-12].
56 Berg A. Double-Edged Peace Pipes. – AntiWar. com. January 20, 2006. URL: https://original.antiwar.com/ann-
berg/2006/01/20/double-edged-peace-pipes/ (accessed 27.02.2020).

51
Alexander N. Vylegzhanin, Boris I. Nefedov,
Evgeny R. Voronin, Olga S. Magomedova, Polina K. Zotova ISSUES OF THEORY OF INTERNATIONAL LAW
Moscow Journal of International Law • 2 • 2021
“when there is one set of rules for Russia – and an-
other for everyone else”
57
. And that is astonishing
taking into account that never has the Soviet Union
nor modern Russia committed such grave violations
of international law as the USA – outing of inter-
national humanitarian law or aggression against an-
other state, as described above.
In November 2017 eresa May declared that the
most important diplomatic task of the United King-
dom is “to defend the rules based international or-
der against irresponsible states that seek to erode it”,
she underlined “it is Russia’s actions which threaten
the international order on which we all depend”
58
. In
2019, Ursula von der Leyen, Germany's Minister of
Defense, stated that “Russia does not respect weakness
...”. She also claried that to play by the rules means to
respect the rules-based international order, including
respect to the sovereignty of other countries
59
. us,
there are sucient reasons to think that the modern
concept “rules-based order” has a political conno-
tation, rst and foremost an anti-Russian one; it is
added to the current political weapons of the West.
Indeed, as noted above, the military intervention of
the United States to Iraq, its occupation and organiza-
tion of death penalty of the Iraqi president S. Hussein
is a gross violation of the UN Charter. e same holds
for the instructions of the U.S. Ambassador in Kiev
to putchists Turchinov, Yatsenuk, Poroshenko how
to overthrow the constitutionally elected Ukrainian
president Yanukovich. But the exible anti-Russian
concept “rules-based order” allows justifying such ac-
tions, committed contrary to the UN Charter.
We can suggest two dimensions of the policy of
realizing the concept “rules-based international or-
der” – civilizational and political. e civilizational
dimension aims to "liberalize" international relations
though revision of the very role of international law
in favor of interests of “western civilization” (the
United States and their western allies). e political
dimension uses the extra-legal format of such order
as a tool to counter the national interests of all other
states excepting western states. Both dimensions are
“built” on ignoring international law as a legal sys-
tem though hypocritically referring sometimes to
the authority of some rules of international law. In
a nutshell the concept presents a tool to universalize
a “one-sided western project” of the world order. If
“[international] law can exist only if there is a bal-
ance, a balance of power between the members of
the family of Nations” [Oppenheim 1905: 73], then
the utilitarian meaning of the concept “rules-based
order” can be reduced to unilaterally imposed view
of certain international actors.
So, the concept which has a purely political back-
ground, is generally circulated under the guise of the
international legal construct. e Russian Foreign
Ministry notes that “these ‘rules’ are invented and se-
lectively combined depending on the current needs
of the authors” [Lavrov 2019: 31]. Furthermore, those
alleged rules present only “a free interpretation or
pulling out of the context of certain international le-
gal norms in favor of a limited group of countries”
60
.
erefore, the deduced aim of the concept is to strive
“to replace universally agreed international legal in-
struments and mechanisms with narrow formats,
where alternative, non-consensual methods of re-
solving certain international problems are developed
bypassing the legitimate multilateral framework”
[Lavrov 2019:31]. us, the idea of rules-based in-
ternational order “denies the collegial beginning of
interstate interaction and, by denition, is unable to
generate solutions to global problems that will be vi-
able and sustainable in the long-term perspective, and
not designed for a propaganda eect within the elec-
toral cycle of a particular country” [Lavrov 2019:34].
Consequently, attempts to establish the predomi-
nance of the concept “rules-based order” over inter-
national law at least in rhetoric on the international
57 Secretary Rice Addresses U.S.-Russia Relations at the German Marshall Fund. – US Department of State. September 18, 2008.
URL: https://2001-2009.state.gov/secretary/rm/2008/09/109954.htm (accessed 27.02.2020).
58 PM speech to the Lord Mayor's Banquet. Theresa May spoke about the importance of an international rules-based system,
free markets and fair societies. November 13, 2017, URL: https://www.gov.uk/government/speeches/pm-speech-to-the-lord-
mayors-banquet-2017 (accessed 27.02.2020).
59 “Ne uvazhayut slabost'”: FRG prizvala Moskvu igrat' po pravilam ["They don't respect weakness": Germany called on Mos-
cow to play by the rules]. – Gazeta.ru. January 23, 2019. (In Russ.). URL: https://www.gazeta.ru/politics/2019/01/23a12140233.
shtml (accessed.02.2020).
60 Vystuplenie Postoyannogo predstavitelya V.A.Nebenzi v khode dialoga vysokogo urovnya predsedatelei General'noi As-
samblei, Soveta Bezopasnosti i Ekonomicheskogo i Sotsial'nogo Soveta OON po voprosam mnogopolyarnogo mira [Speech
by the Permanent Representative of the Russian Federation to the UN and the UN Security Council V.A. Nebenzya during a
high-level dialogue between the Presidents of the General Assembly, the Security Council and the UN Economic and So-
cial Council on a multipolar world]. – News2.ru. September 12, 2019. (In Russ.). URL: https://news2.ru/story/576161 (accessed
20.05.2020).

52
ВОПРОСЫ ТЕОРИИ МЕЖДУНАРОДНОГО ПРАВА
А.Н. Вылегжанин, Б.И. Нефедов,
Е.Р. Воронин, О.С. Магомедова, П.К. Зотова
Московский журнал международного права • 2 • 2021
arena entail the risks of destabilizing the foundations
of international relations. e ambiguous “rules”
widely promoted (instead of relevant concrete inter-
national legal norms) are aimed at ensuring a “liberal
world order” at the cost of undermining the existing
system of international law. First, such suggested or-
der supposes to abandon the agreement-based level
of relations in Europe achieved in the “post-confron-
tational” 1990s. Second, the new practice of coercion
according to some unclear rules is asserted by intro-
duction of unilateral measures, the so-called “sanc-
tions”. ird, there is a risk of lowering the quality
or even nullifying the diplomatic dialogue that states
usually carry out, guided by the provisions of the UN
Charter and other main sources of international law.
Measures preventing such risks should be developed
on the basis of a consistent international legal analy-
sis of the current situation, including comparative
analysis of the relevant legal teachings.
6. e concept “rules-based order”
in the international legal teachings
If one seeks an explanation of this ambiguous
concept in the international legal discourse, one
has to face the “relative silence of international law-
yers”
61
. is is quite understandable given that inter-
national lawyers, by their profession, deal only with
those “rules” that are endowed with normative char-
acter by legitimate means of international legal rule-
making. us, no “rules” in the sense of some condi-
tions for making international legal decisions or of
a set of values are included into the research subject
of international lawyers, namely the international le-
gal system, until they are expressed in the content of
sources of international law or subsidiary means for
the determination of rules of law, or, at least, in le-
gitimate positions of states in the international arena
within international law.
At the same time, some international lawyers
have already drawn attention to the detrimental ef-
fect of replacing international legal terms with the
category “rules-based order”. Australian interna-
tional lawyer, Shirley Scott considers the emergence
of “rules-based order” as an attempt to replace the
“law-based order”
62
. In her opinion, this dangerous
tendency is leading to the extinction of the tradi-
tional understanding of international law as politi-
cally neutral. According to Dr. Scott, despite the fact
that references to the “rules-based order” oen in-
clude the idea of continuity with the international
legal system established aer the end of the Second
World War, this concept has nothing to do with the
principles on which the “ideal of international law”
is based [Scott 1994: 313]
63
. S. Scott identies six
such principles: rst, “the principle of political neu-
trality”, which is expressed in the equal eect of the
norms of international law for each state; second,
“the principle of peace through law”, which means
the possibility of applying law for the peaceful set-
tlement of interstate disputes; third, “the principle
of compulsory compliance”, according to which
states comply with international law by assuming
international legal obligations; fourth, “the princi-
ple of legal/illegal dichotomy”, which establishes the
distinction between permissible and wrong in legal
terms; h, “the principle of law preceding politics”,
according to which law dictates the choice of politi-
cal decisions; sixth, “the principle of comprehensive
coverage”, which means the ability of international
law to cover any issue that arises in interstate rela-
tions [Scott 2018: 630-631]. Relying on these prin-
ciples, international law represents the universally
accepted normative ideal with which the interna-
tional community of states as a whole has agreed on.
erefore, international law is capable of serving as
the regulator of all interactions in the international
arena. Consequently, the rejection of the principles
of international law implies a drastic change in the
very coordinate system of international relations;
that is the replacement of the world order based on
international law with an amorphous order based on
potentially changing rules: rules of the United States
and their allies – today; or rules of China – tomor-
row, etc.
German international lawyer Stefan Talmon does
not pose the question so radically: for him the idea of
“rules-based order” does not exclude the traditional
61 Jorgensen M. International Law cannot save the rules-based order. December 18, 2018. URL: https://www.lowyinstitute.
org/the-interpreter/international-law-cannot-save-rules-based-order (accessed 20.12.2020)
62 Scott Sh. In defense of the International Law-Based Order. – Australian Institute of International Aairs. June 7, 2018.
URL: https://www.internationalaairs.org.au/australianoutlook/in-defense-of-the-international-law-based-order/ (accessed
20.12.2020).
63 Sh. Scott is the author of a methodological approach to understanding the relationship between international law and
international politics through the presentation of international law as an ideology.
64 Talmon S. Op. cit.

53
Alexander N. Vylegzhanin, Boris I. Nefedov,
Evgeny R. Voronin, Olga S. Magomedova, Polina K. Zotova ISSUES OF THEORY OF INTERNATIONAL LAW
Moscow Journal of International Law • 2 • 2021
international legal order
64
. If “rule-based order” is
based on the commitment of states to the existing
system of legal rules, then such international order
inevitably reects a system of modern global govern-
ance by the norms of international law established
in 1945. But as was demonstrated, the concept “rule-
based order” seems broader than legal order result-
ing from observance of international law. It is not
limited to a system of binding norms agreed by the
sovereign will of states, but also includes the so-called
“so law”, i.e. declarative acts of states, documents of
international organizations and associations express-
ing non-legally binding political intentions. is sug-
gestion nds conrmation of the German Ministry
of Foreign Aairs: according to his statement, the
concept “rule-based order” is political in nature and
“covers not only legally binding norms of interna-
tional law, but also non-binding norms, standards
and rules of conduct. For example, timely payment of
contributions, multilateral cooperation to establish a
cooperative world order, or informal associations in
groups of like-minded or allies. e political term
also refers to various international forums, their
decision-making rules and negotiation processes"
65
.
Within this interpretation the popularity of the term
“rules-based order” on the UN platform becomes
understandable, as well as the inclusion of references
to the rule-based order in numerous international
materials.
However, even this positive approach to under-
standing “rule-based order” also raises concerns
66
.
Firstly, to put the system of norms of international
law on a par with a set of certain rules that do not
have any normative properties means blurring the
line between ‘law’ and ‘non-law’. Secondly, the “rule-
based order” does not distinguish between the sub-
jects of international law and other participants in
international processes, such as transnational com-
panies, international non-governmental organiza-
tions, etc. irdly, the fragmentary content of the
concept “rules-based order” endows the sum of
dierent rules with unpredictable character, always
“special rules in special cases”. Non-binding rules
are a priori deprived of the universality inherent to
general international law and expressed in such legal
categories as “main principles of international law”,
“obligations erga omnes”, “ jus cogens”, etc. Fourthly,
calls from political tribunes for a rule-based order
are in essence an attempt to tacitly establish the uni-
versal “bindingness” of a new aggregate of rules that
form the international order without the consent of
all states.
In addition to the existing internal contradictions
of the concept, its dierent interpretations and the
visible shortcomings as described above, fundamen-
tal questions are not answered: who sets these rules
and how are they set? Answering these questions,
S. Talmon warns that the assumption of the obliga-
tory “rules-based order” means recognition of some
kind of dictate: order by “dictate of the majority” or
“order of the strong”
67
. Moreover, if this approach
is accepted, one form of establishing authoritarian
rule-making at the international level is capable of
transitioning into another
68
. Such trend runs coun-
ter to the principle of the sovereign equality of states,
which includes only voluntary acceptance of interna-
tional legal obligations by the state. e key question
is whether the idea the idea of a “rules-based order”
per se aects the UN Charter global observance,
modern international law in general and the princi-
ple of rule of international law in international rela-
tions?
65 “Die „regelbasierte Ordnung“ umfasst neben den rechtlich verbindlichen Normen des Völkerrechts auch rechtlich nicht
bindende Normen, Standards und Verhaltensregeln. Dies sind zum Beispiel das pünktliche Zahlen von Beiträgen, die multilat-
erale Zusammenarbeit mit dem Ziel einer kooperativen Weltordnung oder informelle Zusammenschlüsse in Freundesgrup-
pen oder Allianzen. Der politische Begri bezieht sich zudem auf verschiedene internationale Foren und ihre Entscheidung-
sregeln sowie Verhandlungsprozesse”. See: Deutscher Bundestag. 123 Sitzung. Berlin. 6 November 2019. S. 71-72. URL: http://
dip21.bundestag.de/dip21/btp/19/19123.pdf (accessed 20.12.2020).
66 Talmon S. Op. cit.
67 Ibidem.
68 It should be noted that the dictate of the majority is the reverse side of the idea that international law is the result of rule-
making by the entire international community. For example, M. Hakimi substantiates the idea of the international community
by the fact that all its participants are initially interested in achieving common goals, then the conicts that arise between
them are contradictions only in relation to what specic oces of international law and order should be and how they should
be established. Contradictions and misunderstandings are only exceptions to common aspirations, and at the same time, they
are a natural and even necessary feature of the development of international law. Thus, “international legal conict can have
systemic value for the global order, even when it lacks substantive resolution”. See [Hakimi 2017:317-356].

54
ВОПРОСЫ ТЕОРИИ МЕЖДУНАРОДНОГО ПРАВА
А.Н. Вылегжанин, Б.И. Нефедов,
Е.Р. Воронин, О.С. Магомедова, П.К. Зотова
Московский журнал международного права • 2 • 2021
7. e concept “rules-based order” and the
principle “rule of law in international relations”
e rst concept, as noted above, has come from
the political discussions and tribunes, so it is reason-
able to address the question of the existence of any
intentions of states to consider this order as based on
the principle “rule of law in international relations”.
If we follow A. Watts' assumption that “‘the rule of
law’ cannot be other than generally acknowledged
as a desirable element of any community’s structure”
[Watts 1993:15], we are to say that adherence to the
rule of law in international relations is the most de-
sirable conduct among all law-abiding sovereign
members of the international community of states.
Individual intentions of dierent states are then ex-
plicitly recorded in their declared positions.
7.1. “Rules-based order” is not international law
Reviewing documents or statements by govern-
ment ocials at the level of ocial policy of states, it
can be seen that goals to undermine the rule of law
in international relations were never explicitly re-
vealed. Moreover, the statements with references to
the "rules-based order" follow the line of accepting
the key sources of modern international law, rst and
foremost, the UN Charter. For instance, speaking at
the 68th session of the UN General Assembly on the
rule of law at international level, the representative of
Pakistan, Mr. Masood Khan, emphasized: «e Char-
ter, international law and a rule-based international
system should underpin a just world order. In that
regard, the fundamental notions of sovereign equal-
ity, the settlement of disputes by peaceful means,
and the conduct of international relations without
threat or use of force, the right to self-determination
of peoples that remained under colonial domina-
tion and foreign occupation, and non-interference in
the internal aairs of States were sacrosanct»
69
. e
other remarkable statement was made by Al Hadji
Yahya A. J. J. Jammeh, the President of Gambia, at
the 14th plenary meeting of the 60th session of the
UN General Assembly: «Our Organization must be
the ultimate defender of the rule of international
law, to which all States in the comity of nations must
adhere. Any attempt to weaken or undermine our
rules-based international system should be rejected
without compromise»
70
.
In this regard, the appeal to the rule of law in in-
ternational discussions correlates with the existing
numerous references to the key role of the rule of in-
ternational law in regulating international relations
not only in scholastic works [Troekurov 2006], but
also in numerous international acts adopted by the
absolute majority of states, including those states the
representatives of which invoke the concept “rules-
based order”. us, the preamble of the Declara-
tion on Principles of International Law Concerning
Friendly Relations and Cooperation among States in
accordance with the Charter of the United Nations
1970 includes such reference to the rule of interna-
tional law: “Bearing in mind also the paramount im-
portance of the Charter of the United Nations in the
promotion of the rule of law among nations…”
71
. In
the United Nations Millennium Declaration, adopt-
ed by a UN General Assembly Resolution in 2000,
the member states decided: “To strengthen respect
for the rule of law in international as in national
aairs and, in particular, to ensure compliance by
Member States…”
72
. At the UN World Summit in
September 2005, Member States “unanimously rec-
ognized the need for universal adherence to and im-
plementation of the rule of law at both the national
and international levels”
73
, and also “to the purposes
and principles of the Charter and international law
69 United Nations A/C.6/68/SR.6. General Assembly Sixty-eighth session. October 9, 2013. Agenda item 85: The rule of law at
the national and international levels (continued). URL: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N13/505/88/pdf/
N1350588.pdf?OpenElement (accessed 28.12.2020).
70 UN General Assembly: 14th plenary meeting. September 19, 2005. URL: https://documents-dds-ny.un.org/doc/UNDOC/
GEN/N05/513/98/PDF/N0551398.pdf?OpenElement (accessed 28.12.2020).
71 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance
with the Charter of the United Nations of 24 October 1970. URL: https://www.undocs.org/en/A/RES/2625(XXV) (accessed
date: 14.02.2020). The English words “promotion of the rule of law among nations” are expressed in the French text of the
Declaration “en favorisant le regne du droit parmi les nations”; in Russian text as “установление правопорядка в отношениях
между государствами”.
72 United Nations Millennium Declaration of 18 September 2000. Para. 9. URL: https://www.un.org/en/development/desa/
population/migration/generalassembly/docs/globalcompact/A_RES_55_2.pdf (accessed 28.12.2020).
73 UN General Assembly: Resolution adopted by the General Assembly on 16 September 2005. Para. 134. URL: https://undocs.
org/A/RES/60/1 (accessed 28.12.2020).

55
Alexander N. Vylegzhanin, Boris I. Nefedov,
Evgeny R. Voronin, Olga S. Magomedova, Polina K. Zotova ISSUES OF THEORY OF INTERNATIONAL LAW
Moscow Journal of International Law • 2 • 2021
and to an international order based on the rule of law
and international law”
74
. In 2004 Ko Annan, the UN
Secretary General called the rule of law a “concept at
the very heart of the Organization’s mission”
75
.
In this context it might be suggested that con-
cerns about the concept of “rules-based order” as
contradicting to the rule of international law in in-
ternational relations arise precisely in the case of a
nal equalization of international legal norms and
some “rules” of non-legal nature. However, in order
to scrutinize specic issues of this contraction, we
should get an insight into the substance of the princi-
ple “rule of law” itself.
7.2. e principle “rule of law in international
relations”
In contrast to the concept “rules-based order”, the
very idea of the rule of law (supremacy of law) in in-
ternational relations is universally developed in the
generally accepted categories of “justice” and “equal-
ity” [Koskenniemi 2019:27]. Hugo Grotius deduced
the possibility of the rule of law from the reasonable
nature of the human being; in view of Grotius, it is
the reason of a man that allows him to abandon the
momentary satisfaction of individual interests, and
follow the norms that can ensure the well-being of
the whole society [Koskenniemi 2019:30]. e West-
phalian international legal order was built on a rea-
sonable presumption of sovereign autonomy and
sovereign interests (raison d'Etat) that could best be
satised by a consistent respect of balance of power
[Kissinger 2015: 19].
In the XX century, H. Lauterpacht in his outstand-
ing work “e Function of Law in the International
Community” (1933) asserted the importance of the
rule of law for ensuring peace within the interna-
tional community. For him, “peace is pre-eminently
a legal postulate. Juridically, it is a metaphor for the
postulate of the unity of the legal system» [Lauter-
pacht 2000: 438]. H. Lauterpacht considered the rule
of international law as comprehensive: moreover,
this comprehensive nature is “an a priori assumption
of every system of law, not a prescription of positive
law”. is logically means that the legal system does
not consist of separate "isolated" acts of coordination
of sovereign wills, (which objectively cannot cover
and provide for all international legal issues arising
in changing international relations), but rather is in-
tegrated by some key general principles that always
allow to nd an argument within international law
even in a situation, for which there is no directly ap-
plicable norm [Koskenniemi 1997:226]. uswise,
the idea of the rule of international law itself does
not imply a specic course of action, but rather cov-
ers the guiding principles for relations within “le-
gally ordered community”, which set the framework
for the operation of substantive norms of law [Watts
1993:22].
According to William Bishop the rule of law pre-
sumes “the reliance on law as opposed to arbitrary
power in international relations; the substitution of
settlement by law for settlement by force” [Bishop
1961:553]. However, there is considerable skepti-
cism concerning the very existence of the rule of law
on the international level due to the exorbitant role
of politics in the international relations so that, ac-
cording to G. Schwarzenberger, it is more correctly
to speak about the rule of force instead of the rule of
law [Schwarzenberger, Brown 1976].
Generally, the criticism unfolds as follows: cer-
tain theorists believe that the international law lacks
normativity due to the absence of universal coer-
cive power in the international dimension so that
there are no incentives for states to abide by its rules
[Menon 2020:53]. is judgement arises from the
John Austin’s command theory, which dened law as
a command of the sovereign, and in the event of non-
compliance, the oender could be sanctioned [Aus-
tin 1995]. However, the mentioned above theory
was criticized by Austin’s successors, namely H.L.A.
Hart, who emphasized the “internal aspect” of rules
rather than external [Hart 1997]. Indeed, such char-
acteristic of law as threat of coercion by the sovereign
(which is absent in case of international law) does
not stand scrutiny, especially when the government
itself complies with decisions made against it [Fisher
1961].
On the other hand, if one takes a look at the state
of compliance with the international law nowadays,
74 Ibid.
75 UN Security Council: The rule of law and transitional justice in conict and post-conict societies. Report of the Secre-
tary-General. August 23, 2004. Para. 6. URL: https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-
CF6E4FF96FF9%7D/PCS%20S%202004%20616.pdf (accessed 14.02.2020). See also: UN General Assembly: Uniting our
Strengths: Enhancing United Nations Support for the Rule of Law. Report of the Secretary-General. December 14, 2006. URL:
https://www.refworld.org/docid/45c30c5f0.html (accessed 14.02.2020).

56
ВОПРОСЫ ТЕОРИИ МЕЖДУНАРОДНОГО ПРАВА
А.Н. Вылегжанин, Б.И. Нефедов,
Е.Р. Воронин, О.С. Магомедова, П.К. Зотова
Московский журнал международного права • 2 • 2021
it turns out that by and large states do comply with
its rules notwithstanding the fact that it lacks a sov-
ereign [Menon 2020: 54]. is can be proved as fol-
lows: rstly, the sources of international law are gen-
erally recognized
76
, secondly, there are certain widely
accepted rules, governing the process of internation-
al rulemaking
77
, and nally, it can be illustrated by
numbers – the percentage of rulings of international
courts that are complied with is consistently high-
er than the rate of the complete deance [Paulson
2004:457; Llamzon 2007: 852]. erefore, those who
claim that international law does not exist due to the
lack of universal coercive power at the international
level simply contradict observable facts.
Indeed, “international obligations today are per-
haps more enforceable than ever before” [Menon
2020: 55]. According to S. Menon, this is the result
of the overall growth of the number of international
judicial institutions and their signicance in interna-
tional relations. Such issues as consular assistance,
dual nationality and the detention of foreigners are
getting more attention within the corpus of interna-
tional law [Trindade 2015:5]. Moreover, it is noted
that individuals are gaining more mechanisms de-
signed to hold states accountable for violations of
international law vis-à-vis them within various
emerging procedures such as investor-state dispute
settlement mechanism, which are usually initiated by
way of arbitration. e advantages of the mentioned
above system include more time- and cost-eective
procedure and less cumbersome compared with dis-
pute resolution performed at the state-to-state level
[De Baere, Chané, Wouters 2015: 4].
It should be emphasized that the clause “the rule
of law” cannot exist without association with justice.
By itself, the “dominant position” of law as a regu-
lator of social relations is not sucient evidence of
the rule of law, since the dominant position may be
occupied by a system of unjust and repressive norms
[Watts 1993: 23]. For instance, it is in this way that
proponents of the so called “ird World Approach-
es to International Law” qualify the norms of inter-
national law of the previous world legal order of the
colonial system, as well as the norms of modern in-
ternational law that impede the equal economic de-
velopment of states [Ikejiaku 2014]. In this sense, the
rule of law is a counterbalance to political power of
strong actors, exerting a deterrent eect. As V. Jenks
justly noted, “no legal system operates, or can oper-
ate, in a political vacuum; no political system can
provide good government, ensure justice, or preserve
freedom except on the basis of respect for law” [Jenks
1964:757]. e law itself can never be ultimately per-
fect. But the absence of respect for law will always
bring negative consequences.
7.3. Compatibility of the concept “rules-based
order” with international law
In view of the above-mentioned arguments, is it
possible to formulate criteria for those circumstances
under which the concept does not contradict inter-
national law? is issue is examined by the interna-
tional research group at the Free University of Berlin
and the University of Potsdam as part of the project
“e International Rule of Law – Rise or Decline?”,
which has been implemented since 2016. Co-leader
of the project, German lawyer G. Nolte identies ve
factors inuencing the rise and decline of the rule of
international law.
First, political developments, including ‘return of
geopolitics’, including ideological confrontation, the
problem of legitimacy of international legal decisions
related to the distribution of decision-making power,
and the shi of power from the core players. Second,
systemic violations of the norms of international law,
which can indicate the formation of new directions
in the development of international law, and raise the
question of the very existence of international law.
ird, structural developments in international law,
which may cast doubt upon the role of international
law as a necessary basis for international relations.
On the one hand, structural developments make it
possible to avoid stagnation in the evolution of inter-
state relations, ensuring the relative exibility of the
international legal system, for example, by allowing
informal types of cooperation or by involving new
participants. On the other hand, structural devel-
opments bring with them all the disadvantages of
deformalization, such as the problem of hegemonic
governance, a distorted legal consciousness and a
lack of legitimacy of the rules being formed. Fourth,
contestations of the underlying values of the interna-
tional law, such as maintaining peace and security,
76 Statute of the International Court of Justice of 26 June 1945. Art. 38(1). URL: https://www.icj-cij.org/en/statute (accessed
12.12.2020).
77 As of April 2021, 116 State Parties have ratied the Vienna Convention on the Law of Treaties.

57
Alexander N. Vylegzhanin, Boris I. Nefedov,
Evgeny R. Voronin, Olga S. Magomedova, Polina K. Zotova ISSUES OF THEORY OF INTERNATIONAL LAW
Moscow Journal of International Law • 2 • 2021
recognition of human rights, solidarity obligations in
relation to common values, such as sustainable de-
velopment, etc. Fih, institutional challenges associ-
ated with the proliferation of international organiza-
tions, and institutions for the resolution of disputes,
their expansive and fragmented international legal
practice [Krieger, Nolte 2016].
According to this ve-sided scheme, one can
characterize the inuence of the concept “rules-
based order” on the principle “rule of law” – in terms
of “rise or decline”. However, the positive or nega-
tive impact will depend on the proposed hypotheses.
For example, the emergence of the rhetoric about
the “rules-based order” as a political development is
negative if it allows the unilateral imposition of se-
lected rules by illegitimate means against the will of
other states, entailing, for example, concentration of
power within a group of western states at the expense
of other states. In these circumstances the concept
“rules-based order” becomes a factor of systemic
violations of international law. e concept exerts
negative impact as it serves the purpose of justify-
ing some acts of western states through distorting the
content of international legal norms. As a structural
development, the establishment of such new “order”
would entail erosion of the normative hierarchy in
the international legal system and decrease in the le-
gitimacy of existing legal procedures. As a factor un-
dermining the international peace and security, the
concept “rules-based order” turns out to be negative
as it is aimed at rejection of the existing values of the
international legal system in favour of questionable
alternatives. Finally, as an institutional challenge,
the concept “rules-based order” takes on a negative
meaning if it is realized de facto via some interna-
tional agreements, contacts or associations, thus
claiming universality. Accordingly, it is a necessity to
prevent these “negative” parameters, so that the very
idea of a rules-based order does not contradict the
principle of the rule of law in international relations.
Without such “negative” factors, the idea of a
“rules-based order” cold be compared with the con-
cept “international juridical system” as suggested
by Prof. G. Tunkin. e Soviet international lawyer
introduced the concept of an “international juridi-
cal system”, which included not only legal norms, but
also semi-legal norms, closely interrelated [Tunkin
1978:60-61]. He understood “semi-legal norms” as
norms that though are not norms of law, contain
some legal element, for instance, recommendations
of international organizations and international ar-
rangements (understandings and memoranda). is
doctrinal innovation made it possible to systematize
constantly emerging norms at the international level
in the context of the growing internationalization of
many aspects of life. e concept presented within
the walls of the Hague Academy of International Law
in 1975 did not cause any controversy or refutation,
and even was repeatedly mentioned in publications
on the legal signicance of the rule-making of inter-
national organizations [Institut…1985:39]. is is
probably because the advanced legal concept posi-
tively aects the operation of the existing procedures
for establishing international legal norms. It was as-
sumed that “semi-legal” norms, as well as interna-
tional legal ones, are the result of the coordination
of the wills of states, and are addressed only to states,
their dierence lies only in the degree of normativity
and exibility of creation.
is example allows us to draw a conclusion about
possible positive features of the concept “rules-based
order” if it corresponds to international law. First, the
concept should not question the legitimacy of recog-
nized international law-making procedures. Conse-
quently, the concept is to exclude any illegitimate dis-
tortion of universal legal rules. Second, the concept
should distinguish between the types of norms that
form the basis of the order, according to the degree
of normativity. erefore, references to the rules that
form the basis of the order must contain an indica-
tion of the source, i.e. the site at which the rules were
developed and within which they apply. is means
that the claim that the entire “rule-based order” is
universally binding is wrong. ird, the concept
“rule-based order” cannot be abstract. Finally, the ef-
fect of particular rules should be limited to a specic
circle of creators and addressees of the rules, thereby
excluding unreasonable expectations of the imple-
mentation of the rules by states not participating in
their development. ese simple suggestions might
promote the concerned concept into real interna-
tional life without raising doubts about its compat-
ibility with international law.
8. Conclusion
Research of the concept “rules-based order” has
demonstrated, that the use of this concept per se does
not shatter the stability of the existing international
legal order. However, the dependence of the concept
on the meaning given to it by those who refer to this
concept makes the concept vulnerable to political
discursive manipulation. Today, the meaning of the
concept is determined by the relevant concrete cir-
cumstances and authorship. From this point of view,
the concerns of the Russian Foreign Ministry about

58
ВОПРОСЫ ТЕОРИИ МЕЖДУНАРОДНОГО ПРАВА
А.Н. Вылегжанин, Б.И. Нефедов,
Е.Р. Воронин, О.С. Магомедова, П.К. Зотова
Московский журнал международного права • 2 • 2021
the risks of replacing international law with the pa-
ralegal concept “rules-based order” are well reasoned
and, as was shown, nd support of foreign interna-
tional legal scholars. e problem is that today the
concept is widely accepted not only by the USA and
other western states, but also by huge number of de-
veloping states and such a rising economic and mili-
tary superpower as China. In these circumstances,
in our opinion, the conceptual conict is to be re-
solved. In fact, is not as sharp as, for example, the
famous “War of books” (“Mare Liberum” v. “Mare
Clousum”). It can be resolved without a radical rejec-
tion of the use of this popular notion nor its accept-
ance. It is enough to agree on the basic content of the
concept which might be universally acceptable and
might neutralize its negative anti-international law
connotation, burdened with risks of legal nihilism in
international relations.
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About the authors
Alexander N. Vylegzhanin,
Doctor of Juridical Sciences, Professor, Head of the Depart-
ment of International Law, Moscow State Institute of Inter-
national Relations (University) MFA Russia
76, pr. Vernadskogo, Moscow, Russian Federation, 119454
Информация об авторах
Александр Николаевич Вылегжанин,
доктор юридических наук, профессор, заведующий ка-
федрой международного права, Московский государ-
ственный институт международных отношений (Уни-
верситет) МИД России
119454, Российская Федерация, Москва, проспект Вер-
надского, д. 76

60
ВОПРОСЫ ТЕОРИИ МЕЖДУНАРОДНОГО ПРАВА
А.Н. Вылегжанин, Б.И. Нефедов,
Е.Р. Воронин, О.С. Магомедова, П.К. Зотова
Московский журнал международного права • 2 • 2021
danilalvy@mail.ru
ORCID: 0000-0003-4833-2525
Boris I. Nefedov,
Doctor of Juridical Sciences, Associate Professor, Professor
at the Department of International Law, Moscow State Insti-
tute of International Relations (University) MFA Russia
76, pr. Vernadskogo, Moscow, Russian Federation, 119454
boris-nefedov@mail.ru
ORCID: 0000-0002-7762-5979
Evgeny R. Voronin,
Retired Ambassador Extraordinary and Plenipotentiary,
Cand. Sci. (Law), Professor at the Department of Interna-
tional Law, Moscow State Institute of International Rela-
tions (University) MFA Russia
76, pr. Vernadskogo, Moscow, Russian Federation, 119454
tverv@rambler.ru
ORCID: 0000-0002-1229-0012
Olga S. Magomedova,
Post-graduate student at the Department of International
law, Moscow State Institute of International Relations (Uni-
versity) MFA Russia
76, Prospekt Vernadskogo, Moscow, Russian Federation,
119454
olga.magomedova.96@mail.ru
ORCID: 0000-0003-0593-3101
Polina K. Zotova
Department for External Economic and International Rela-
tions, The Government of Moscow,
22, Voznesenskiy per., Moscow, Russian Federation, 125009
zotovapk@mos.ru
ORCID: 0000-0002-8647-7410
danilalvy@mail.ru
ORCID: 0000-0003-4833-2525
Борис Иванович Нефёдов,
доктор юридических наук, доцент, профессор кафедры
международного права, Московский государственный
институт международных отношений (Университет)
МИД России
119454, Российская Федерация, Москва, проспект Вер-
надского, д. 76
boris-nefedov@mail.ru
ORCID: 0000-0002-7762-5979
Евгений Ростиславович Воронин,
Чрезвычайный и Полномочный посол в отставке, кан-
дидат юридических наук, профессор кафедры междуна-
родного права, Московский государственный институт
международных отношений (Университет) МИД России
119454, Российская Федерация, Москва, проспект Вер-
надского, д. 76
tverv@rambler.ru
ORCID: 0000-0002-1229-0012
Ольга Сергеевна Магомедова,
аспирант кафедры международного права, Московский
государственный институт международных отношений
(Университет) МИД России
119454, Российская Федерация, Москва, проспект Вер-
надского, д. 76
olga.magomedova.96@mail.ru
ORCID: 0000-0003-0593-3101
Полина Константиновна Зотова
Департамент внешнеэкономических и международных
связей, Правительство г. Москвы
125009, Российская Федерация, Москва, Вознесенский
переулок, д. 22,
zotovapk@mos.ru
ORCID: 0000-0002-8647-7410