ANDREW FARRAN. New series. We can say ‘no’ to the Americans.

Dec 13, 2016

We should have a very clear and unromantic view of what we conceive to be the ‘national interest’.

Can we say No to the US?

In the abstract, we can say ‘yes’.

But that is not how the issue might arise.

The question may have more immediacy now with a Trump presidency ahead.From Vietnam on, indeed since the Communist revolution in China in 1949, it is we, not they, who have almost shamelessly urged the US to maintain an active presence in the Pacific region. More recently however many have begun to question the utility of aspects of the ANZUS alliance, some components of which remain critical to our mutual security (Pine Gap, intelligence sharing, and technical access), but some others we are now realising are not (irrelevant far off deployments and their  accompanying political complications). So can we pick and choose?

That would depend very much on context. If Trump were to adopt an aggressive policy towards Iran for instance we should oppose any unsettling of  the constraints on its nuclear program but would have no major quarrel with Iran otherwise. In areas of the Middle East beyond Iran we would prefer not to commit further where our national interests are not involved. But with respect to areas such as the South and East China Seas, including the Taiwan straits and surrounding seaways, would we join with Trump in enforcing rights of passage and challenging China on other matters affecting its security? Might that not be the end of our end game as between China and the US before it had really begun? At what point do we say ‘no’? Could we say no if Japan were involved in hostilities with China and/or North Korea regardless of fault? We still have a commitment to the defence of South Korea arising from the 1953 Armistice.

Security treaties are essentially political in character though in legal form. They are formed in circumstances where the context is clear and the underlying understandings and expectations are similarly. They may be based on a common interest to preserve a balance of power, whether globally or regionally, as was the case leading to the two World Wars. Alliances then were certainly entangling for the parties when on this ground alone an assassination of an archduke a continent away led to an all-in for the First World War, and an invasion similarly distant led to an all-in for the Second World War. But apart from the  lengthy post-war Cold War period there has been nothing on that scale since; and now with more frequent and more strident assertions of nationalism rather than of empires conflict has become more local and segregated. Of their nature these conflicts are complex, involving ethnic, racial and religious elements where external intervention has proven time and again to be counter-productive in its outcomes.

We live in changed circumstances and changed circumstances allow parties to review or revise their treaty commitments in that light. There is the well known principle of international law – Rebus Sic Stantibus, which is:

A tacit condition attached to all treaties to the effect that they will no longer be binding as soon as the state of facts and conditions upon which they were based changes to a substantial degree (West’s Encyclopedia of American Law).

But where the political connection is strong as with the US there is no intention of abrogating our treaty ties. The answer to our question may therefore turn on whether a Trump Administration acted or proposed to act in a specific case to maintain a stable geo-strategic balance of power as opposed to seeking to drag us into out-of-region conflicts or provocations that do not engage our essential national interests and cause political embarrassment. In the latter case we should say ‘No’. In any event we should have a very clear and unromantic view of what we conceive to be the ‘national interest’ which apart from avoiding invasion and trade blockades can be a lose and variable notion in the minds of certain vested and sectional interests in our midst.

Andrew Farran, former diplomat, law academic; and Treasurer, Australians for War Powers Reform 

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