Understanding the Myth of the Rule-Based International Order (Part III)

By Cenap Çakmak

The phrase “rule-based international order” has gained significant rhetorical and analytical importance in contemporary diplomatic, legal, and academic discourse. However, its explanatory value fundamentally depends on how the concept of “order” is understood. In discussions regarding the use of force, this term is frequently used simultaneously in descriptive, normative, and aspirational senses; insufficient attention is paid to the distinction between what the legal system prescribes, what institutions can operationalize, and what political actors are willing to uphold in practice. This conceptual shift often creates exaggerated expectations regarding the nature of international legality and, consequently, leads to distorted judgments about its failures.

The discussion above has demonstrated that international law operates through a movement from the ideal toward practice, and once it enters practice, it takes various forms within a spectrum shaped by the relationship between law and political authority. Within this spectrum, the most robust expression of enforceable law is restriction; here, behaviors are explicitly limited, expectations of oversight are institutionally articulated, and responses to violations are at least normatively defined. The current discourse on the so-called rule-based international order can be more accurately understood by referring precisely to the various consequences of enforceable law—and most importantly, to this restrictive form.

A recurring misunderstanding in both political and academic circles is the tendency to interpret every major violation of the regime of power use as proof that the international order is either collapsing or was never meaningful to begin with. Such conclusions rest on the assumption that a genuine legal order must resemble a centralized internal system characterized by automatic enforcement and uniform coercive capacity . Yet the legal framework regulating power has never functioned in this manner. The structure of this framework has always been layered, unbalanced, and shaped by political mediation; it derives its authority not so much from centralized coercion as from normative density, institutional routine, the discourse of justification, and the loss of legitimacy of power that is clearly contrary to law.

For this reason, the idea of a rule-based international order should be treated not as evidence of an already consolidated global constitutional system, but as a method for evaluating the degrees of legalization, institutionalization, and enforceability across different domains. In the realm of power, this concept is particularly prone to exaggeration because it is frequently used as if a fully centralized legal order with automatic sanctions already existed. This assumption is misleading. A legal order in the strong sense requires more than the mere existence of norms; it depends on the extent to which those norms produce cumulative effects such as constraint, control, and response. The true power and limits of the contemporary rules-based international order can be meaningfully assessed not merely through rhetorical appeals, but through these outcomes.

Norms

The most common, ordinary, and fundamental outcome of applicable international law is the production of norms. At this level, international law operates by fostering shared expectations regarding appropriate behavior among states; these expectations arise from mutual consent, repeated practices, and the gradual internalization of legal obligations. These norms can be expressed through various legal forms, including treaties, customary international law, general principles, institutional declarations, standards, and even soft law forms that shape states’ behavior even if they are not formally binding. What unites these different expressions is their capacity to form the fundamental framework of legal expectations through which states regulate their behavior, justify their choices, and evaluate the actions of others.

Unlike domestic legal systems, where compliance is often linked to a central sanction, the normative layer of international law is based primarily on consent-based legitimacy and societal expectations regarding lawful conduct. States engage in treaty-making, maintain consistent patterns of practice, and accept certain standards as legally valid not only because they are obligated to do so, but also because such participation serves mutual interests, stabilizes expectations, and contributes to long-term legitimacy within the international community. In the realm of customs, this sense of obligation is technically expressed through opinio juris—the belief that a particular practice is followed not merely out of convenience but due to a legal duty. This element is crucial because it demonstrates that international law creates a distinct legal consciousness among states even in the absence of central institutions: compliance is not merely strategic; it is typically articulated and defended in explicit legal terms.

Consequently, the mechanisms upholding this normative layer are both widespread and robust. Reciprocity encourages states to comply with rules; for legal predictability increases the likelihood that others will do the same. Legitimacy reinforces this compliance by embedding it within broader expectations of responsible membership in the international community . Reputational loss makes deviating from rules politically costly, particularly for states seeking a leadership role or normative credibility. Finally, since stable legal frameworks reduce uncertainty and lower the costs of repeated interactions, long-term strategic interests generally align with compliance with rules. These mechanisms do not require central sovereignty to be effective; rather, they operate through the social and political ecology of interstate relations.

At the same time, the strength of norms varies significantly. Some remain weak and contentious, creating only weak or context-specific expectations. Others, however, become deeply entrenched and gain broad acceptance across legal systems, diplomatic practices, and judicial reasoning. The prohibition against genocide, the principle of pacta sunt servanda, diplomatic immunity, or the fundamental rules of treaty interpretation serve as examples of norms that have attained a high degree of authority and compliance. Their strength derives from repeated affirmations across treaties, state practices, case law, and political discourse, and they create a stronger sense of legal obligation compared to more fragmented or emerging standards.

However, when deprived of oversight or institutional support, even strong norms constitute only the most basic layer of the international legal order. Their existence creates a normative environment, but does not yet constitute a robust legal order in the stronger sense, which will be addressed in subsequent sections. Without mechanisms capable of monitoring compliance, clarifying ambiguities, authoritatively interpreting obligations, or organizing collective responses to violations, the order created by norms essentially remains a decentralized structure. While legal in the sense of recognizing and articulating obligations, its functional power depends largely on voluntary compliance, political credibility, and mutual expectations. For this reason, norms must be understood as the indispensable first layer of international law: Norms provide the vocabulary of obligation and the general grammar of compliance, but on their own they constitute only the minimal architecture of the legal order; this architecture requires additional layers of oversight and constraint before it can approach a more fully institutionalized, rule-based structure.

Decisions

When norms are reinforced by institutional decisions, a stronger and more functional form of enforceable international law emerges. If norms constitute the ordinary and least central layer of the legal order, decisions represent the point at which these norms are transformed into authoritative findings, interpretive rulings, supervisory observations, and case-specific decisions by institutions possessing recognized authority. Courts, treaty monitoring committees, oversight bodies, arbitration panels, and experts within regulatory regimes contribute to this layer. Their role is not necessarily to create entirely new law, but rather to clarify, define, monitor, and apply existing norms in concrete disputes or compliance processes. In this sense, decisions maintain continuity with the normative layer while significantly enhancing its legal weight and practical impact.

The similarity with norms lies in their common foundations: both derive their authority from the consent of the state and from accepted legal obligations. Just as treaties and customary rules depend on mutual recognition among states, institutional decisions are only possible because states have previously consented to procedures—through treaty provisions, optional protocols, judicial declarations, or membership in organizations such as the —that allow for the authoritative assessment of their conduct. However, the fundamental difference lies in the decision-making layer’s incorporation of institutionalized interpretation and individualized scrutiny. While norms create a general expectation of compliance, decisions transform these expectations into specific judgments regarding whether obligations have been fulfilled, violated, or require corrective measures within a particular context. This additional layer significantly strengthens the legal order by reducing uncertainty and increasing the reputational and political costs of non-compliance.

Human rights regimes provide some of the clearest examples of this stronger form. Regional human rights courts, such as the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court on Human and Peoples’ Rights, go beyond the mere existence of treaty norms by issuing binding rulings in individual cases, determining whether states have violated protected rights, and frequently prescribing remedies. These institutions do not replace the fundamental normative framework of human rights treaties; rather, they make these norms more functional by incorporating them into the judicial framework.

A particularly significant example within this framework is the International Court of Justice regarding the Genocide Convention. Here, the legal order is strengthened not only because genocide is prohibited as a norm, but also because Article IX establishes a basis for consensus regarding the Court’s jurisdiction over disputes concerning the interpretation, application, or implementation of the Convention. This means that when the conditions for jurisdiction are met, the Court can move from abstract normativity to authoritative judicial decisions, including provisional measures and final rulings regarding state responsibility. In this regard, the prohibition of genocide exists at the normative level, but the International Court of Justice’s ability to adjudicate gives this norm a much more robust institutional expression.

The same logic applies in the field of international criminal law through the International Criminal Court. The Rome Statute transforms broad norms against atrocities—such as genocide, crimes against humanity, war crimes, and aggression—into a system of individualized prosecutions and judicial decisions. The International Criminal Court’s (ICC) contribution is not merely symbolic: it transforms the normative prohibition of mass atrocities into investigations, arrest warrants, admissibility decisions, and criminal judgments against specific individuals. This layer of decisions sharply distinguishes existing law from a purely normative framework by linking obligations to personal accountability and judicial consequences.

Beyond courts, treaty-based monitoring committees also exemplify this second layer of the legal order. Expert bodies tied to human rights treaties, such as the United Nations Committee Against Torture, monitor states’ periodic reports, assess compliance trends, and publish findings, observations, and recommendations regarding the implementation of the treaty. In the context of torture, such bodies provide ongoing oversight of detention practices, risks of extradition, obligations of non-refoulement, and allegations of ill-treatment. While their outputs are generally less binding than judicial decisions, they constitute a form of oversight that is stronger than mere norms because they subject state conduct to regular institutional scrutiny and authoritative legal interpretation.

Consequently, this decision-making layer can best be understood as the intermediate architecture of a rule-based international order. While adhering to the consensus-based normative framework described in the previous section, this layer deepens that framework by bringing into play institutions that can authoritatively determine compliance with rules in specific cases. The resulting legal order is stronger than norms because it reduces uncertainty and creates definable records regarding violations, justifications, and remedies. At the same time, it remains separate from the strongest layer of international legality, as decisions may lack a reliable enforcement mechanism unless combined with broader oversight, sanctions, or collective intervention mechanisms. Therefore, decisions occupy a vital middle ground: they transform law from a shared expectation into an institutionally articulated judgment, thereby signaling a transition from foundational normativity to a more fully structured legal order.

Order

A genuine legal order represents the most advanced outcome of binding international law. This order arises not merely from the existence of strong norms or the accumulation of authoritative decisions, but from the transformation of both into a durable structure regarding harmony, interpretation, and enforcement. In its strongest sense, order emerges when norms provide material standards for behavior, decisions lead to authoritative clarity and context-specific application, and both are embedded in institutions capable of creating a relatively predictable harmony over time and among members. Thus, what distinguishes order from the preceding layers is the existence of an authoritative structure capable of transforming legal expectations into routinized political behavior.

For this reason, a genuine legal order in the international arena requires inclusive and representative institutions with transnational or supranational characteristics. Such institutions do not merely monitor compliance; they accustom actors to repeated legal practices, impose concrete consequences for deviations, and establish hierarchies of interpretation through courts, commissions, councils, and oversight mechanisms. In this sense, order is not synonymous with the mere existence of rules. Order is the condition under which rules and decisions have become sufficiently institutionalized to shape political behavior even in times of conflict.

The European Union remains the clearest example of this form. The legal order consists of layered norms (treaties, regulations, directives, and general principles), authoritative decisions (particularly through the Court of Justice of the European Union), and robust compliance mechanisms supported by direct effect, supremacy, infringement procedures, and material sanctions. Together, these elements create a self-reinforcing structure in which the law permeates national legal systems and compels member states to comply. Here, norms and decisions are not isolated layers; they are the foundational elements of an order possessing autonomous legal authority.

The Council of Europe provides a second, though somewhat softer, example. While the European Convention on Human Rights provides the normative layer, the case law of the European Court of Human Rights constitutes the decision-making layer. The elements that elevate this regime to the level of a legal order are the supervisory role of the Committee of Ministers, the expectation that implementation has become routine, and the incorporation of Convention standards into domestic constitutional practices. Although the EU lacks full supranational access, it nevertheless demonstrates how restrictive law can evolve into a quasi-regime through the interaction between norms, judicial decisions, and institutional follow-up.

Similar dynamics can be observed in other regional and functional regimes. The World Trade Organization’s dispute settlement system, despite current political tensions, has historically approached a legal order by integrating treaty norms with binding panel and Appellate Body decisions and institutionalizing compliance reviews through retaliation mechanisms. Similarly, the inter-American human rights system exhibits order-like qualities in situations where the norms and decisions of the American Convention, the Inter-American Court of Human Rights, and the OAS’s political oversight collectively translate into sustainable regional legal expectations.

By this measure, the global framework on the use of force does not fully meet the conditions of a legal order. Undoubtedly, it contains a strong restrictive norm regarding the prohibition of unilateral use of force and also possesses a decision-making layer through the Security Council, the International Court of Justice, and selective collective responses. However, this framework lacks the supranational authority, automaticity, and uniform compliance mechanisms necessary to transform these layers into a genuine legal order. Enforcement remains dependent on political consensus among major powers, and interpretive authority is repeatedly decentralized due to claims of self-defense and institutional paralysis.

Another defining feature of the structural legal order is its tendency, once consolidated, to create additional layers of restrictions that progressively narrow the scope of permission, while also interacting with regulatory legal forms. In other words, the order is not static. It deepens legalization by progressively transforming broad normative commitments into more specific obligations, procedural duties, review mechanisms, and graduated sanctions. The result is a dynamic narrowing of the legal sphere: matters once left to political discretion within the scope of permission become regulated, and things previously merely regulated may transform into restrictions backed by authoritarian enforcement.

This situation is particularly evident in the examples discussed above. Within the European Union, the fundamental treaty norms have, over time, given rise to secondary legislation, compliance timelines, infringement procedures, financial penalties, and suspension mechanisms under Article 7 of the TEU. These developments demonstrate how the structural order reinforces itself by predefining the consequences of deviation. Violations are not merely criticized rhetorically; they trigger official procedures, judicial review, and potentially financial penalties. In this sense, the system continuously narrows the legal and political maneuvering space available to member states in areas already subject to shared authority.

A similar pattern is observed within the Council of Europe and the European human rights regime. Here, the interaction between Convention norms, ECHR rulings, and Committee of Ministers oversight gradually narrows national discretion by transforming abstract rights obligations into concrete implementation duties. Repeated violations are cataloged, monitored, publicly condemned, and, in more serious cases, linked to consequences such as intensified political pressure, increased oversight, or suspension. The normative impact is cumulative: each decision further restricts the broad interpretive leeway that states previously enjoyed.

The same structural logic can be observed in the WTO’s historically robust dispute settlement regime, where treaty obligations have evolved into detailed procedural rules and compliance incentives based on retaliation. A process that began as regulation through negotiated commitments transforms into a constraint when the system defines authorized countermeasures, retaliation caps, and review procedures. Similarly, in the Inter-American system, repeated judicial rulings and political follow-up are increasingly narrowing the scope for national governments to use sovereignty as a permissive shield against their human rights obligations.

These examples demonstrate that the order does not rely solely on norms and decisions as static foundational elements; rather, it reproduces itself through stronger constraints, clearer punitive mechanisms, and the routine condemnation of violations. Sanctions are defined, punitive pathways are institutionalized, and the legal and political costs of violations increase. Thus, the narrowing of the scope for discretion is one of the clearest indicators of the existence of a genuine legal order.

For this reason, the phrase “rule-based international order,” while politically powerful, retains its analytical ambiguity in the realm of the use of force. A more productive academic inquiry focuses not on whether order exists in an absolute sense, but on the extent to which order is produced under specific political conditions, how norms and decisions are consolidated into structures of authority, and how rapidly the restrictive legal sphere can transform into a permissive interpretive sphere under institutional pressure. Therefore, for an academic audience, a more productive line of inquiry is not whether order exists in an absolute sense, but rather to what extent order emerges under specific political conditions and how quickly a restrictive legal sphere can transform into a permissive interpretive sphere under institutional pressure.