This article addresses some current issues. It takes as a general context what is understood by the Rules Based Order. It briefly describes what is understood by this term, how it has operated and some of the challenges that it has faced.
The Rules Based Order is invoked from time to time when convenient and often in circumstances when by its invocation its flaws and weaknesses are made clear.
Former PM Helen Clark has emphasized the importance of the Rules Based Order in the context of New Zealand’s response to the US bombing of Iran. Hers is an idealistic position while at the same time she recognizes that in its current form the proposals are under threat.
She is of the view that the current state of flux represented a chance to update rules written by colonial powers after WWII so they better reflect the modern world. But such a rewrite will likely contain the same flaws and shortcomings as the present system
I then pass to consider a specific aspect of the Rules Based Order – the Law of the Sea as contained in the United Nations Convention on the Law of the Sea (UNCLOS) and in particular the rules relating to freedom of navigation.
The focus sharpens when I consider the operation of the Rules Based Order and UNCLOS in the context of recent developments in the Strait of Hormuz in the Persian Gulf.
I must emphasise that this is not a thorough legal treatise. It is an overview of some of the legal issues that surround the Rules Based Order.
The Rules-Based Order (RBO) — sometimes called the “Liberal International Order” or “Rules-Based International Order” (RBIO) — refers to the system of norms, institutions, laws, and agreements that has governed international relations, primarily since the end of World War II in 1945.
The central premise is that international behaviour should be governed by agreed rules rather than by raw power or the unilateral will of the strongest states. Countries — large and small — are expected to abide by shared frameworks rather than simply doing whatever they can get away with.
The order was largely designed by the United States and its Western allies after 1945, reflecting their power and values. This is a source of both its strength and its controversy — critics note that the “rules” were written by the winners of WWII and often reflect Western liberal-democratic assumptions.
There are six key pillars to the RBO.
The first is institutional architecture. A web of multilateral institutions underpins the order: the United Nations (collective security and diplomacy), the International Monetary Fund and World Bank (financial stability and development), the World Trade Organization (trade rules), and the International Court of Justice (legal disputes).
Secondly there is International Law. States are bound by treaties, conventions, and customary international law. Foundational documents include the UN Charter (prohibiting aggressive war), the Universal Declaration of Human Rights, the Geneva Conventions (laws of war), and the Law of the Sea (UNCLOS).
Thirdly there are matters of sovereignty and territorial integrity. States recognise one another’s borders and refrain from conquering territory by force, a principle directly born from the catastrophe of WWII.
Fourthly there are the principles of free trade and open economies. An open, rules-governed global trading system was seen as a foundation for peace and prosperity, reducing the incentives for conflict.
Human Rights norms provide a fifth pillar. The RBO embeds, at least aspirationally, universal standards of how states should treat their own citizens.
Finally there is the principle a nuclear non-proliferation. The Nuclear Non-Proliferation Treaty (NPT) and associated frameworks aim to prevent the spread of nuclear weapons.
In a sense the entire concept of the RBO is aspirational and it is one that is contested.
The US and its allies have themselves violated norms they champion (e.g., the Iraq War, extraordinary rendition, drone strikes). Critics argue the RBO is selectively enforced. In this sense there is an element of Western hypocrisy.
There is not universal “buy in” to the concept.
Russia and China explicitly reject aspects of the order, arguing it is a vehicle for Western dominance dressed up as universal principles. Russia’s invasion of Ukraine (2022) is widely seen as a direct assault on it.
Many developing nations (the Global South) feel the order entrenches existing hierarchies, protects Western economic interests, and does not represent their voices adequately in institutions like the UN Security Council or IMF.
Finally the rules were set without the consent of most of today’s states, many of which were colonies at the time.
There can be no doubt that the RBO is under significant stress. Some might suggest that this has always been so. But more recently the rise of China, Russian revisionism, the retreat of US multilateralism under certain administrations, and the spread of populist nationalism have all strained the system.
Debates about its reform, replacement, or collapse are central to contemporary geopolitics — with questions such as whether the order be made more inclusive? Will it fragment into rival blocs? Or will a genuinely multipolar set of rules eventually replace it?
In short, the RBO is both a real operating system for international relations and a contested political concept — simultaneously a description of how the world works and an ideological claim about how it should work.
International treaties are among the most concrete and legally binding expressions of the RBO, and UNCLOS is one of the best examples of both the power and the limits of treaty-based governance.
Treaties can be described as the RBO’s hardest legal infrastructure. Unlike softer norms or UN resolutions, ratified treaties create binding obligations in international law. They have a number of functions.
Treaties codify previously vague customary international law into precise, written rules. They create dispute resolution mechanisms with real (if limited) enforcement. They provide smaller states with a legal basis to resist pressure from larger ones and treaties build predictability — states and commercial actors can plan around known rules.
In this sense, treaties are the skeleton of the RBO. Without them, the order would be little more than aspirational rhetoric.
Why Treaties Are Not Sufficient Alone
Treaties only govern by the consent of signatory states. Treaties necessarily have an impact on freedom of action and sovereignty.
Powerful states can opt out simply by not signing up to a Treaty. The US, notably, has never ratified UNCLOS, which weakens its moral authority when invoking it against China.
Ratification (domestic incorporation or recognition of a Treaty) does not guarantee compliance. States can sign and then violate. A stark example is Russia and the Budapest Memorandum guaranteeing Ukraine’s sovereignty.
There are gaps in the Treaty framework. Cyberwarfare, artificial intelligence, and space are domains where treaty law is embryonic or absent, leaving the RBO thin precisely where new conflicts are emerging
Finally, withdrawal is possible — The US withdrew from the Paris Agreement (temporarily), the Iran nuclear deal, and UNESCO, demonstrating that treaties can be unravelled by domestic political changes
The Underlying Dynamic
Treaties play a dominant role in giving the RBO its legal texture and specificity, but they are not self-executing. Their effectiveness exists on a spectrum — from highly effective (WTO dispute settlement, Chemical Weapons Convention) to aspirational (many human rights treaties) to openly defied (UNCLOS in the South China Sea).
The deeper truth is that treaties work best when the major powers have a shared interest in the rules holding, and they weaken precisely when great power rivalry intensifies — which is the central challenge facing the RBO today.
The UN Convention on the Law of the Sea (UNCLOS)
UNCLOS provides a useful case study of the operation of treaties and the RBO.
UNCLOS is often called the “constitution of the oceans.” It is one of the most comprehensive and widely ratified treaties in history, with 169 parties. Iran ratified it. The USA is not a signatory. It illustrates both the strengths and weaknesses of treaty law within the RBO.
UNCLOS defined territorial waters (12 nautical miles), Exclusive Economic Zones (EEZ- 200nm), and the high seas with legal precision. It established rights over seabed resources and fishing. It created compulsory dispute settlement through the International Tribunal for the Law of the Sea (ITLOS) and it gave landlocked and developing states rights they would never have obtained through power politics alone
Freedom of Navigation
An important aspect of UNCLOS surrounds freedom of navigation.
Freedom of navigation is a principle of customary international law and treaty law holding that ships and aircraft of all states have the right to traverse the world’s oceans and airspace without interference.
It rests on the foundational idea that the high seas are a global commons — belonging to no single state and open to all.
The principle traces back to the 17th century, most famously articulated by the Dutch jurist Hugo Grotius in his 1609 work Mare Liberum (”The Free Sea”), which argued against Portuguese and Spanish claims to monopolise ocean routes.
Over centuries it became embedded in customary international law and was eventually codified in UNCLOS adopted in 1982.
Under UNCLOS and customary law, freedom of navigation includes:
Innocent passage through a coastal state’s territorial sea (up to 12 nautical miles) — ships may transit continuously and expeditiously without prior notice or permission, so long as passage is not “prejudicial to the peace, good order or security” of the coastal state.
Transit passage through international straits used for navigation.
Freedom of navigation on the high seas — beyond any national jurisdiction, all states enjoy full freedom of navigation, overflight, fishing, and scientific research.
The right of warships to transit without prior authorisation (though some states dispute this for their territorial seas)
What About the EEZ?
The EEZ is one of UNCLOS’s most significant innovations. A coastal state may claim an EEZ extending up to 200 nautical miles from its baseline (coastline).
Within this zone, the state has sovereign rights over the exploration, exploitation, conservation and management of natural resources (fish, oil, gas, minerals) and jurisdiction over artificial islands, marine scientific research, and environmental protection
Can a State Restrict Navigation in Its EEZ?
The short answer is no, not legitimately under international law.
UNCLOS Article 58 is explicit: in the EEZ, all other states enjoy the freedoms of navigation and overflight referred to in Article 87 (the high seas freedoms). The coastal state’s sovereign rights in the EEZ are resource rights, not territorial sovereignty. The EEZ is emphatically not an extension of the territorial sea.
This means that foreign ships — including warships — have the right to navigate freely through another state’s EEZ and foreign military aircraft have the right to fly over it. The coastal state cannot require prior notification or permission for naval transits and cannot impose shipping lanes or restrict passage for security reasons (beyond what applies on the high seas generally)
I have suggested that UNCLOS also shows the limits of the RBO.
The South China Sea dispute is the defining test case. China claims vast swathes of the sea through its “nine-dash line,” which has no basis in UNCLOS.
In 2016, an Arbitral Tribunal (under UNCLOS’s own dispute mechanism) ruled overwhelmingly against China’s claims. China simply rejected the ruling and ignored it. The tribunal had no enforcement mechanism to compel compliance.
This reveals the central tension. Treaties bind willing states, but cannot reliably constrain a powerful state determined to defy them. Enforcement ultimately depends on political will, coalitions of states, and sometimes the implicit threat of military or economic consequences — not on any supranational authority.
This demonstrates a wider problem for the RBO – it has no reliable enforcement mechanism against the great powers.
The UN Security Council, the closest thing to an enforcement authority, can be vetoed by any of its five permanent members — Russia and China will veto any resolution directed against themselves or their close partners.
The International Criminal Court has issued arrest warrants for Vladimir Putin, but he has not been arrested and the ICC depends entirely on state cooperation.
The International Court of Justice issues rulings that states simply ignore when politically inconvenient.
This means enforcement ultimately relies on coalitions of states applying political, economic, and military pressure — which is possible when the US and its allies are united and motivated, but becomes unreliable when those coalitions fracture or when the offending state is too large and interconnected to sanction effectively.
David Harvey is a former District Court Judge and Mastermind champion, as well as an award winning writer who blogs at the substack site A Halflings View - Where this article was sourced.
She is of the view that the current state of flux represented a chance to update rules written by colonial powers after WWII so they better reflect the modern world. But such a rewrite will likely contain the same flaws and shortcomings as the present system
I then pass to consider a specific aspect of the Rules Based Order – the Law of the Sea as contained in the United Nations Convention on the Law of the Sea (UNCLOS) and in particular the rules relating to freedom of navigation.
The focus sharpens when I consider the operation of the Rules Based Order and UNCLOS in the context of recent developments in the Strait of Hormuz in the Persian Gulf.
I must emphasise that this is not a thorough legal treatise. It is an overview of some of the legal issues that surround the Rules Based Order.
The Rules-Based Order (RBO) — sometimes called the “Liberal International Order” or “Rules-Based International Order” (RBIO) — refers to the system of norms, institutions, laws, and agreements that has governed international relations, primarily since the end of World War II in 1945.
The central premise is that international behaviour should be governed by agreed rules rather than by raw power or the unilateral will of the strongest states. Countries — large and small — are expected to abide by shared frameworks rather than simply doing whatever they can get away with.
The order was largely designed by the United States and its Western allies after 1945, reflecting their power and values. This is a source of both its strength and its controversy — critics note that the “rules” were written by the winners of WWII and often reflect Western liberal-democratic assumptions.
There are six key pillars to the RBO.
The first is institutional architecture. A web of multilateral institutions underpins the order: the United Nations (collective security and diplomacy), the International Monetary Fund and World Bank (financial stability and development), the World Trade Organization (trade rules), and the International Court of Justice (legal disputes).
Secondly there is International Law. States are bound by treaties, conventions, and customary international law. Foundational documents include the UN Charter (prohibiting aggressive war), the Universal Declaration of Human Rights, the Geneva Conventions (laws of war), and the Law of the Sea (UNCLOS).
Thirdly there are matters of sovereignty and territorial integrity. States recognise one another’s borders and refrain from conquering territory by force, a principle directly born from the catastrophe of WWII.
Fourthly there are the principles of free trade and open economies. An open, rules-governed global trading system was seen as a foundation for peace and prosperity, reducing the incentives for conflict.
Human Rights norms provide a fifth pillar. The RBO embeds, at least aspirationally, universal standards of how states should treat their own citizens.
Finally there is the principle a nuclear non-proliferation. The Nuclear Non-Proliferation Treaty (NPT) and associated frameworks aim to prevent the spread of nuclear weapons.
In a sense the entire concept of the RBO is aspirational and it is one that is contested.
The US and its allies have themselves violated norms they champion (e.g., the Iraq War, extraordinary rendition, drone strikes). Critics argue the RBO is selectively enforced. In this sense there is an element of Western hypocrisy.
There is not universal “buy in” to the concept.
Russia and China explicitly reject aspects of the order, arguing it is a vehicle for Western dominance dressed up as universal principles. Russia’s invasion of Ukraine (2022) is widely seen as a direct assault on it.
Many developing nations (the Global South) feel the order entrenches existing hierarchies, protects Western economic interests, and does not represent their voices adequately in institutions like the UN Security Council or IMF.
Finally the rules were set without the consent of most of today’s states, many of which were colonies at the time.
There can be no doubt that the RBO is under significant stress. Some might suggest that this has always been so. But more recently the rise of China, Russian revisionism, the retreat of US multilateralism under certain administrations, and the spread of populist nationalism have all strained the system.
Debates about its reform, replacement, or collapse are central to contemporary geopolitics — with questions such as whether the order be made more inclusive? Will it fragment into rival blocs? Or will a genuinely multipolar set of rules eventually replace it?
In short, the RBO is both a real operating system for international relations and a contested political concept — simultaneously a description of how the world works and an ideological claim about how it should work.
International treaties are among the most concrete and legally binding expressions of the RBO, and UNCLOS is one of the best examples of both the power and the limits of treaty-based governance.
Treaties can be described as the RBO’s hardest legal infrastructure. Unlike softer norms or UN resolutions, ratified treaties create binding obligations in international law. They have a number of functions.
Treaties codify previously vague customary international law into precise, written rules. They create dispute resolution mechanisms with real (if limited) enforcement. They provide smaller states with a legal basis to resist pressure from larger ones and treaties build predictability — states and commercial actors can plan around known rules.
In this sense, treaties are the skeleton of the RBO. Without them, the order would be little more than aspirational rhetoric.
Why Treaties Are Not Sufficient Alone
Treaties only govern by the consent of signatory states. Treaties necessarily have an impact on freedom of action and sovereignty.
Powerful states can opt out simply by not signing up to a Treaty. The US, notably, has never ratified UNCLOS, which weakens its moral authority when invoking it against China.
Ratification (domestic incorporation or recognition of a Treaty) does not guarantee compliance. States can sign and then violate. A stark example is Russia and the Budapest Memorandum guaranteeing Ukraine’s sovereignty.
There are gaps in the Treaty framework. Cyberwarfare, artificial intelligence, and space are domains where treaty law is embryonic or absent, leaving the RBO thin precisely where new conflicts are emerging
Finally, withdrawal is possible — The US withdrew from the Paris Agreement (temporarily), the Iran nuclear deal, and UNESCO, demonstrating that treaties can be unravelled by domestic political changes
The Underlying Dynamic
Treaties play a dominant role in giving the RBO its legal texture and specificity, but they are not self-executing. Their effectiveness exists on a spectrum — from highly effective (WTO dispute settlement, Chemical Weapons Convention) to aspirational (many human rights treaties) to openly defied (UNCLOS in the South China Sea).
The deeper truth is that treaties work best when the major powers have a shared interest in the rules holding, and they weaken precisely when great power rivalry intensifies — which is the central challenge facing the RBO today.
The UN Convention on the Law of the Sea (UNCLOS)
UNCLOS provides a useful case study of the operation of treaties and the RBO.
UNCLOS is often called the “constitution of the oceans.” It is one of the most comprehensive and widely ratified treaties in history, with 169 parties. Iran ratified it. The USA is not a signatory. It illustrates both the strengths and weaknesses of treaty law within the RBO.
UNCLOS defined territorial waters (12 nautical miles), Exclusive Economic Zones (EEZ- 200nm), and the high seas with legal precision. It established rights over seabed resources and fishing. It created compulsory dispute settlement through the International Tribunal for the Law of the Sea (ITLOS) and it gave landlocked and developing states rights they would never have obtained through power politics alone
Freedom of Navigation
An important aspect of UNCLOS surrounds freedom of navigation.
Freedom of navigation is a principle of customary international law and treaty law holding that ships and aircraft of all states have the right to traverse the world’s oceans and airspace without interference.
It rests on the foundational idea that the high seas are a global commons — belonging to no single state and open to all.
The principle traces back to the 17th century, most famously articulated by the Dutch jurist Hugo Grotius in his 1609 work Mare Liberum (”The Free Sea”), which argued against Portuguese and Spanish claims to monopolise ocean routes.
Over centuries it became embedded in customary international law and was eventually codified in UNCLOS adopted in 1982.
Under UNCLOS and customary law, freedom of navigation includes:
Innocent passage through a coastal state’s territorial sea (up to 12 nautical miles) — ships may transit continuously and expeditiously without prior notice or permission, so long as passage is not “prejudicial to the peace, good order or security” of the coastal state.
Transit passage through international straits used for navigation.
Freedom of navigation on the high seas — beyond any national jurisdiction, all states enjoy full freedom of navigation, overflight, fishing, and scientific research.
The right of warships to transit without prior authorisation (though some states dispute this for their territorial seas)
What About the EEZ?
The EEZ is one of UNCLOS’s most significant innovations. A coastal state may claim an EEZ extending up to 200 nautical miles from its baseline (coastline).
Within this zone, the state has sovereign rights over the exploration, exploitation, conservation and management of natural resources (fish, oil, gas, minerals) and jurisdiction over artificial islands, marine scientific research, and environmental protection
Can a State Restrict Navigation in Its EEZ?
The short answer is no, not legitimately under international law.
UNCLOS Article 58 is explicit: in the EEZ, all other states enjoy the freedoms of navigation and overflight referred to in Article 87 (the high seas freedoms). The coastal state’s sovereign rights in the EEZ are resource rights, not territorial sovereignty. The EEZ is emphatically not an extension of the territorial sea.
This means that foreign ships — including warships — have the right to navigate freely through another state’s EEZ and foreign military aircraft have the right to fly over it. The coastal state cannot require prior notification or permission for naval transits and cannot impose shipping lanes or restrict passage for security reasons (beyond what applies on the high seas generally)
I have suggested that UNCLOS also shows the limits of the RBO.
The South China Sea dispute is the defining test case. China claims vast swathes of the sea through its “nine-dash line,” which has no basis in UNCLOS.
In 2016, an Arbitral Tribunal (under UNCLOS’s own dispute mechanism) ruled overwhelmingly against China’s claims. China simply rejected the ruling and ignored it. The tribunal had no enforcement mechanism to compel compliance.
This reveals the central tension. Treaties bind willing states, but cannot reliably constrain a powerful state determined to defy them. Enforcement ultimately depends on political will, coalitions of states, and sometimes the implicit threat of military or economic consequences — not on any supranational authority.
This demonstrates a wider problem for the RBO – it has no reliable enforcement mechanism against the great powers.
The UN Security Council, the closest thing to an enforcement authority, can be vetoed by any of its five permanent members — Russia and China will veto any resolution directed against themselves or their close partners.
The International Criminal Court has issued arrest warrants for Vladimir Putin, but he has not been arrested and the ICC depends entirely on state cooperation.
The International Court of Justice issues rulings that states simply ignore when politically inconvenient.
This means enforcement ultimately relies on coalitions of states applying political, economic, and military pressure — which is possible when the US and its allies are united and motivated, but becomes unreliable when those coalitions fracture or when the offending state is too large and interconnected to sanction effectively.
David Harvey is a former District Court Judge and Mastermind champion, as well as an award winning writer who blogs at the substack site A Halflings View - Where this article was sourced.
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