ANDREW FARRAN. Rendering ‘rules-based order’ to meaninglessness.

Oct 19, 2018

The constant reiteration in speeches of a “Rules-Based Order” is reducing the concept to relative meaninglessness, lacking either content or policy. There is already in existence a rules-based order which is undergoing change. The question is: what kind if change should that be. 

It is said since Donald Trump emerged in the White House to make America great, and the rise of China in the Asia-Pacific, the post-WW2 global institutional architecture is being dismantled and thrown into abeyance, and that world anarchy is just around the corner.

The fact is that little has changed in the well-established rules-based order other than for those who equate that order with US domination in all spheres. The United Nations Organisation still exists, as do its numerous organs and subsidiary bodies, including the International Monetary Fund, the World Trade Organisation, and the International Atomic Energy Agency. All these have evolved further over time. Most have been tested as to their effectiveness and efficacy. And where they have been found wanting, this has causes little different today from what they were at their inception.

The only time the Security Council was able to act in relation to a breach of the peace where Great Power interests were involved was over Korea in 1951, not because it rose to the occasion but because the Soviet Union had absented itself from the Council when the decision was taken. This has not happened since.

The failure of global institutions, especially those with responsibilities for keeping or restoring the peace, are due to factors  that pre-date the modern era – the absence of political will or resources. The absence of political will is due to self-interest or rivalries, and the absence of resources is due an unwillingness to share burdens. In short, the absence of cooperation.

The foundations of world order go back at least to the 17th century and the emergence of the modern state, an order underpinned by the doctrine of sovereignty and the essential ingredient for its viability: namely the law of treaties and the underlying notion that agreements must be kept. Superimposed on that are the innumerable international arrangements, some more formal than others, that enable the world to function – so that trade proceeds, that airliners and ships don’t collide and that business can be conducted from one side of the world to the other instantaneously. Disruption and conflict within these activities between states is, in general, not due to the absence of an orderly basis for their conduct but to a failure to observe its relevant norms in a given situation. While the unilateral use of force is outlawed by the U.N. Charter that does not mean of course that military conflict does not occur but that it has consequences within the system; just as murder is outlawed in domestic systems but has consequences within those systems when it does occur. For both nations and citizens, security is not absolute and never was. The participation of non-state actors in the system has however created a new dimension with new issues for resolution.

Cases where the international system may be on the point of breaking down altogether occur in major wars, especially war on a global scale. But even then the conflict is regulated by agreements and conventions: for instance concerning the detention of prisoners of war, the protection of civilians, the immunity of hospital ships, etc. Even when these agreements and conventions are abused, perpetrators are not in due course immune from consequences. But it must be observed that while the basic international system may remain intact the power relations of sovereign states may change fundamentally. Power politics takes place within the system which has consequences for ‘the rules’ superimposed on it. Which raises the question: whose rules?

It is in this respect that changes, even fundamental changes, may result. So former colonies will reject rules (including those pertaining to the exploitation of natural resources) as determined by the previous colonial powers; rising states may reject sea boundary rules determined when the balance of maritime power was unfavourable to them; or when treaties relating to state succession have passed their used by date. Whatever the issue, the rules-based order as evolving has a place for determining outcomes whether these result from negotiation, armed conflict or otherwise.

It is not enough to call for a ‘rules-based order’. We have one already though it changes with time. It comes down to who and what are the drivers of change. That is the stuff and substance of international relations. For this one need policies, not slogans. For Australia the question is: what kind of changes should we being seeking and what should we not accept (if we have the means of doing so). And with whom.

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

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