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Commitment to the 'rules-based order' ('RBO') has emerged as a leading discourse among advocates for stability in global order. Yet, despite the most authoritative rules being those agreed between states to be legally binding, it is primarily political voices that advocate in these terms, often assuming that they also embody lawyers' commitment to the 'international rule of law'. Legal scholarship has in contrast remained sceptical about the meaning of the RBO and alive to the perils of uniting legal and non-legal rules within a single normative ideal. This article defines the RBO in jurisprudential terms in order to interrogate a core strategic assumption driving the discourse: that establishing non-legal rules that are consistent with international law complements and reinforces binding legal rules governing the same subject matter. In positivist terms, the RBO generally refers to the order of legal and non-legal rules of global governance but has increasingly developed a secondary meaning as a comparative conception of international law informed by particularistic Western and liberal notions of global order. Using the case of the proposed ASEAN-China Code of Conduct in the South China Sea, the article demonstrates that the RBO and the international rule of law have become antagonistic normative ideals in cases where legal rules have failed to constrain the self-judging interpretations of a geopolitically dominant state. States must instead look beyond substituting one category of rules for another and seek to construct the geostrategic balances of power necessary for a RBO that is consistent with international law.
I Introduction
On 1 September 2020, Germany released its Policy Guidelines for the IndoPacific ('2020 Policy Guidelines'), thereby joining the growing number of states and regional organisations that endorse a concept of the Asia-Pacific and Indian Oceans as a single geostrategic domain.1 Contained in the Policy Guidelines is a commitment to resolving tensions in the South China Sea ('SCS') by supporting 'a substantive and legally binding Code of Conduct between China and the ASEAN Member States'.2 The significance of these words is easy to overlook, since there has been almost universal support among states for some version of the Code of Conduct ('COC') since its negotiations began in 2002. Yet, by explicitly calling for a code that is 'legally binding', Germany distinguished its diplomatic approach...