CAVAN HOGUE. What rules based order?

Australia proclaims the importance of a rules based international order but it is not at all clear what those rules are, let alone who observes them and who doesn’t. Even where there is agreement on what the rule is countries interpret it to suit their interests. There are no countries in a position to cast the first stone. International agreements might reasonably be seen as rule setting but there are few such bodies where every country in the world has signed up and many important ones have not been accepted by one or more of the major world powers. I try to ask here some of the questions  that we should be looking at.  I suggest that Australian leaders reflect Australia as it used to be and not as it increasingly will be. This influences their approach to the world and to rules today.

We hear a lot about the importance of a rules based order but what exactly is it? This is not clearly defined nor accepted universally. The whole question needs to be re-examined..

We may divided the rules into commercial and politico-military while some might add human rights rules.

There are various bodies and agreements that define the rules for trade but not everyone follows them. Currently, most countries call for free trade but the USA favours protectionism. There is nothing new about this debate which was a feature of the arguments in the newly established Australian federation around 1901. So there is not agreement on the basics.

The politico-strategic rules based order is a more complex creature. European ideas on international law go back to Grotius and even to Christian ideas of what constituted just and unjust wars. In the 19th century the rule was that you did not interfere in the domestic affairs of other countries but this seemingly only applied to European countries which busily interfered in the domestic affairs of Asian and African countries to the point of conquest. Now many countries believe that there are circumstances under which interference or even invasion is justified.  The USA, for example, proclaimed a sphere of influence very early on when the Monroe Doctrine told others to keep out of the Americas. This did not stop the US from overthrowing regimes that did not suit its commercial or strategic interests in Latin America and the Caribbean.

Today, Australia amongst others, demands and indeed claims to follow an existing  rules based order. We criticise Russia for annexing Crimea and interfering in Ukraine as well as Chinese excursions into the South China Sea because they are not observing the rules. We do not, however, criticise those countries we see as the good guys for breaking the rules. If overthrowing  democracies and interfering in other countries’ elections is breaking the rules, the USA is way ahead of Russia with China coming in a poor third. Indeed, we ourselves broke the rules by joining in the invasion of Iraq without a Security Council mandate and helping the CIA’s attempts to prevent the election of Salvador Allende in Chile.. Who makes the rules and who decides they have been broken? What are the rules? International law is a Western invention which China does not accept just as the Chinese do not accept that Western style democracy is the best form of government. Furthermore, countries which are guided by laws based on religious principles put God before human laws. So, for example, many Christian and Muslim countries make homosexual acts illegal because that is what the Bible or the Koran teaches them. Human rights are not well defined except for what is in UN documents but these are subject to interpretation. So, just as the colonial powers in 1947 interpreted freedom and self-government as rights which did not apply to their colonies, so other countries take the same liberty today when interpreting the rules in a way that suits their interests. The whole question of what the rules are needs to be explored and updated rather than just imposed by those of European heritage.

That said, there are international treaties which bind members and observation of the obligations under these treaties may reasonably be called observing the rules. The problem is that states which have not signed are not bound and in some case like the ICJ (International Court of Justice) many states do not accept its jurisdiction unless it suits them. Both China and the USA can be counted amongst this number while Australia accepts it “with reservations”.  The US has not signed on to the ICC because it is not willing to have Americans tried  under this rule and UNCLOS (Law of the Seas convention) which  surely establishes important rules. The Refugee Convention is another case where many countries are not signatories, e.g. Indonesia and Malaysia. Nuclear disarmament is an area where the major nuclear powers have not reduced their arsenals as provided for in treaties they have signed. There are uncontroversial rules setting organisations like ICAO which sets rules for international civil aviation but these are not the kinds of bodies which create controversy. Customary international law is a minefield and is of course based on European customs.

Chinese remember the more than a hundred years of aggression and hypocrisy by those countries that now lecture them on how to behave so we should not be surprised that the Chinese do not accept these lectures. They propose a whole different set of rules which we may not like but on what basis do we reject them except that we have some kind of divine right to set the rules? We can and should of course argue for our rules but we have to bring others along with us if they are to be established as international rules. It is interesting to note that the US describes China as “revisionist” because it does not except the status quo which means American preponderance. Change is not necessarily a bad thing.

Australian policy is directed by people of European background and outlook. For all the talk about Asia our defence/intelligence establishment dominates foreign policy and its partners are European and North American, especially white English speaking countries with whom our leaders are comfortable. All members of the Cabinet are of European ethnic heritage and outlook. The shadow Cabinet is no better with one part Asian member (Penny Wong) who grew up in Australia. With a few exceptions, our mainstream media is dominated by people of the same ilk as are most of our private sector leaders. These people all grew up in a world dominated by European history and culture and this remains their default position on the world. Unfortunately for us, there are many other views in the world and especially in the part of it where we live.  Our talk of a rules based order is seen by many as simply the old colonial approach where the natives are to be led to follow the values and interests of a higher civilisation. Countries like China do not accept the rules and it is no use lecturing them about their need to convert. None of this means we have to change our way of life if we don’t want to but simply that countries like China have had their fill of missionaries and we should accept that other countries have the same right to do things their way as we do. Instead of people who accept that the world is changing and that Australia has to come to terms with these changes we are led by people who sometimes talk the talk about a changing world but who walk the old walk. Thus, we have hitched our wagon to the USA and NATO and got involved in wars which serve their perceived interests but not Australian. What rules govern our participation in Syria and Iraq let alone Afghanistan?

A growing percentage of Australians are of non-European heritage and hopefully will eventually move into leadership roles but this looks like being some way off. We may not have time to wait. In the meantime, if we want our talk about a rules based order to be taken seriously by others we need to be clear on what the rules are and be even handed on who keeps them and who breaks them – including ourselves. We do not need to throw out all existing rules but some clarity and adjustment is clearly required.

Cavan Hogue is a retired Australian diplomat who has also worked in universities.

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4 Responses to CAVAN HOGUE. What rules based order?

  1. ANDREW FARRAN says:

    The absence of order usually implies disorder – and that would not be in anyone’s interests now or at any time.

    As circumstances change, along with the balance of interests, a relatively new order may emerge either peacefully or as a consequence of force and power politics.

    The common elements of the international system is its treaty structure and evolving state practice, which provides a body of customary law having general acceptance.

    The origins of the modern system goes back to 1648 with the conclusion of the Treaty of Westphalia, a European settlement The post 1945 settlement, based on the UN Charter, is a substantial refinement and updating of that original system.. But the essential elements of the original system remain.

    Treaties once negotiated should be observed but may be challenged by some in the face of a fundamental change of circumstances – by way of diplomacy and negotiation, or by force or power politics. If successful this will necessitate some adjustment or modification to the system.

    We are currently experiencing such circumstances today but history shows that when that occurs the system rarely throws out the baby with the bath water.

    It is incumbent on those who prefer the least disruption to the established system to avoid habitual transgressions from their legal obligations.

    What is extraordinary about a status quo country like Australia is its cavalier readiness to pick and choose among the legal obligations it abides by and those it doesn’t, simply to suit a particular case.

    We can’t be surprised therefore if others do likewise on an even larger scale and much against our national interests.

  2. Lawry Herron says:

    A salutary ‘lecture’ Cavan, that should have wider circulation including in law and foreign relations areas of our uni courses. Up front of our selective honouring of the international rules based order are our (non-) observance of the Refugees Convention, which is still in force for Australia, and, as Mamdouh Habib and David Hicks can attest, our flagrant disregard of The Geneva Convention for Protection of POWs and the Second Protocol to it. These breaches in turn bring into question Australia’s respect for the Geneva Convention on the Law of Treaties, the keystone of the whole edifice of regulated international order.

  3. Kim Choong says:

    Hi, I do think all countries benefit from a “rules-based order” even if there is no unanimous agreement on what exactly those rules are. I suggest thinking of a “rules-based order” as comprising:
    (i) a set of core rules in which there is close to unanimous agreement and is likely to enjoy close to unanimous support going into the far future; plus
    (ii) a set of “non-core rules” which has less than unanimous agreement (but still considerable support), and which may change over time.

    I see the lack of unanimity as a “feature”, not a “bug”. It is reasonable that countries have different views of what the rules-based order is (or ought to be). There is no reason to insist on a single view of the rules-based order and insist that those rules cannot change. We ought to be open to being persuaded by others that there are better rules.

    We ought to critically examine rules to see if they in fact promote globally just outcomes. This should be an empirical, outcomes based comparative approach vs a transcendent, outcome-independent, idealised approach. Ultimately, global justice entails ensuring that every person regardless of nationality have broadly equal opportunity to live lives and pursue goals & commitments that they each have reason to value.

    Our current world would be “less unjust” if the global rules that we commit to help to: (i) promote global inclusive growth (both across and within nations), (ii) address climate change, and (iii) end the refugee crisis. We ought to be able to agree on the need to address these and other issues, and work together to address them.

    I have a concern that the Western alliance have outlived its usefulness. There was a time when the US led alliance promoted security and development for all countries. But these days, the US led alliance is an exclusive club. It only seeks to promote security and development for the US and her allies.

    Australia ought to re-examine whether the “alliance” is an inclusive alliance vs an exclusive alliance.

  4. Jock McLaren says:

    “Indeed, we ourselves broke the rules by … helping the CIA’s attempts to prevent the election of Salvador Allende in Chile.”
    More details, please. First I’ve heard of it.

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