ANDREW FARRAN. Modernising the Rules-based International Order

Prime Minister Morrison’s verbal assault on what he described, in relation to multilateral institutions, “as negative globalism that coercively seeks to impose a mandate from an often ill-defined borderless global community…and worse still an unaccountable international bureaucracy” – is of course simplistic political rhetoric. But in the light of generational changes in the balance of the global order it raises serious questions for the present day and future that need to be addressed.

Echoing an oft-repeated mantra in another context: “We will decide who comes here”, Prime Minister Morrison declaimed: “We can never answer to a higher authority than the people of Australia”.

Does the latter statement exclude being answerable for serious national misdeeds or serious breaches of international law? Does it exclude respect for the UN Charter and its purpose of preventing or mitigating breaches of the peace. Presumably not, but the attitude does reflect a high degree of disenchantment with the state of the international system currently.

It is best that the causes of this be addressed positively and with knowledge and understanding of how the system has reached this point and what can be done about it – by a middle level power like Australia, working with others in the absence of any coherent direction from the so-called ‘great powers’, including the US.

The process should not involve reinventing the wheel, a wheel figuratively constructed painfully following the catastrophic consequences of two world wars. That architecture could only be reconstructed from scratch were we to suffer a similar catastrophe in future. What is now required is patient remodelling and adaptation of the existing system where it is clearly deficient or unreflective of societal changes, national and international, over recent generations.

On cue is a publication from Chatham House (RIIA) in the UK entitled: Ideas for Modernizing the Rules-Based International Order” (June 2019). It explores the limits to international order and how global rules and institutions can adapt to proliferating challenges to peaceful cooperation between states. It is intended to stimulate debate around these highly contested areas and examine the effectiveness and desirability of different models of international governance.

Under the heading ‘Adapt or Die’, it poses the question of the legitimacy of rules underlying varying international orders where sovereignty is pooled and where powers are delegated consensually by states on a particular issue. Recalling the origins of the Westphalian system (1648), which still prevails, “as being one which emphasises the sanctity of sovereignty and non-interference in the internal affairs of other states as a pre-condition for order, but relying on a jostling balance-of-power approach to the preservation of a basic stability”.

This jostling is occurring in an inescapably inter-dependent world, in which states cannot by and of themselves manage the challenges to their future prosperity and security, even when living in peace. In that regard the comment is made that for international society to play its part it is all the more important that national governments deliver a high quality of governance at home, to empower private actors, civil society and citizens to be agents of positive change.

The document does not tackle the biggest question of all – how to reform the UN Security Council. Without adverting directly to that question it states that there are risks to reopening the underlying basis for the institutional structure. “Without a clear path ahead the existing structure could be weakened and the institutions’ ability to continue operating could be compromised”. But consideration might have been given to restricting the use of the Five Powers’ veto to matters only where that Power’s direct interests are critically involved.

Sections of the document deal inter alia with renewing the Bretton Woods System (the IMF and World Bank) where voting weights need adjusting;
with rethinking the WTO’s role in a digitally divided world; with creating a global Code of Conduct for outer space; with recalibrating the ‘Responsibility to Protect’ principle (RTP); with preserving the effectiveness of antibiotics with a global treaty; with targeting agricultural supply chains to tackle deforestation; and with increasing climate ambition by making policy more inclusive. Also discussed is China’s contribution as a participant in multilateral processes which it contrasts with the negativism of Russia.

Regarding the WTO, and acknowledging that the earlier GATT system based on consensus (one size fits all), and which presumed policy convergence among 164 members, is no longer workable; and given also the evidence that the supranational dispute settlement structure remains controversial (not least with the US), the document supports the adoption of sector-specific forums and pluri-lateral agreements involving limited coalitions of consenting states. This would be a breakout for the WTO and would promote trade growth where trade has taken on additional complexity by combining services, intellectual property and investment issues.

On cyberspace the document tackles the divide between the two principal techno-ideological blocs: one led by the US, the EU and like-minded states advocating a global and open approach to the digital space; the other led mainly by Russia and China, emphasising a sovereignty-and-control model. Recent UNGA resolutions from both sides of the divide were cited to be complementary, but are in effect competing campaigns to cement a preferred model as the global norm. The document supports an approach that recognises the importance of developing joint standards and consistent messaging to ‘swing states’ – and which incorporates human rights principles and expands their application to the digital space.

Related to this are further comments on both the Chinese and Russian approaches in the multi-lateral sphere. The Chinese are acknowledged to have reservations about various aspects of the rules-based system but have been increasingly involved in the shaping of newer areas of international law, including procedural rules for the emerging deep-sea mining regime and other sector-specific areas. China has supported UN peacekeeping, the work of the WTO, the Paris Agreement on climate change, and UNCITRAL – in addition to institution building in its own region. It naturally looks to protect its direct interests as with the South China Sea. States should be prepared to pushback when China unilaterally repudiates accepted norms without regard to its impact on others.

In contrast to China’s relatively positive approach to multilateralism since the Cold War era, the document points to Russia’s negativism when it lost its former status. To quote the document: “China wants to use the system to rise up within it. Russia’s leadership wants a different system altogether. Facing structural economic decline, Russia cannot fulfil its supposed great power destiny by any means acceptable to the West. The Kremlin has correctly deduced that Russia’s developmental prospects are so poor that the country cannot rise within the established rules of the international order”. So it won’t work cooperatively with it.

A matter where the common welfare of all is obvious and which should lend itself to ready agreement concerns a suggested treaty to preserve the effectiveness of antibiotics. Drug-resistant infections, it is noted, are already estimated to kill at least 700,000 people a year, and could kill 10 million a year by 2050 if left unchecked. It adds: “The potential impact of antibiotic resistance also threatens development and the global economy: recent estimates warn that the economic damage from uncontrolled antimicrobial resistance could be comparable to that of the 2008 financial crisis”.

Commenting on ASEAN as an adoptee of ‘soft power’, its institutional survival is seen as being dependent on a strict adherence to the principle of non-interference in the internal affairs of others and concentrating on mutual economic cooperation as exampled by the Regional Comprehensive Economic Partnership (RCEP) launched in 2002. Noting ASEAN’s studied avoidance of serious human rights violations within its ranks, the document observes that “for ASEAN to be an effective peace and security actor, it needs to marry non-intervention with a greater investment in preventive diplomacy”.

Whether or not Prime Minister Morrison believes that nations, and men, are metaphoric islands there is serious work to be done in refitting global institutions for current and future purposes. As the Chatham House Director, Robyn Niblett, puts it: “…systems in which governments are truly accountable to their citizens – through a separation of powers, the rule of law and a strong civil society – offer greater opportunities for domestic progress over the long term, as well as for constructive international cooperation in an interdependent world”.

Mr Morrison, are you listening?

Andrew Farran is a former diplomat, law academic and international trade adviser.

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Andrew Farran is former diplomat, trade adviser to government and senior academic (public law including international law).

Writes extensively on international affairs and defence, contributing previously to major newspapers (metropolitan and rural). Formerly director of major professional publishing company; now of a major wool growing enterprise.

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