International law and rules-based order are different in important ways for Australia

Jul 25, 2022
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Australian politicians appear purposefully blind to domestic developments in America; and especially poorly briefed on the subterranean scholarly debates that suddenly emerge as new policy directions. For instance, understanding the intellectual battle over international law that has been taking place in professional journals and academic monographs is of vital importance to Australia’s public diplomacy and strategic policy.

This is a complex, technically sophisticated, and somewhat esoteric matter. The concepts of international law and a rules-based order are, however, clearly differentiable in ways that are important to a dominant power. However, as Shirley Scott has identified, the shift to a “rules-based” order is also relevant for Australia’s national interests.

What Malcolm Chalmers wrote about the UK’s strategic discourse could be said of Australia; “Official documents and speeches rarely define what is meant by [rules-based international order], as if it is widely recognised”.

If there are rules other than the international law norms set out in treaties or determined by authorised arbitrational institutions what are they, who sets them, and what is the obligation to comply?

In the early-2000s a concerted academic attack was mounted in the US on the efficacy and practicality of international law. Among the leading scholars in this movement were Eric A Posner and Jack L Goldsmith in their coauthored publications The Limits of International Law (2005) and The New International Scholarship (2006). Jens Ohlin’s The Assault on International Law (2015) captures the debate and provides a powerful response. This debate licensed in part the liberty for government documents, in the West at least, to speak of a rules-based order rather than international law.

It has not always been the case that the key strategic objective of Australian governments was to secure something called the “rules-based” order. A shift can be seen in the major strategic policy documents, and in the political rhetoric, of the US and Australia since about 2010 when references to internationally Iaw gradually gave way to the rules-based order.

Defence strategic documents prior to 2009 contain no references to rules or to international law; apart from a reference to “rules-based regimes for conflict resolution” in the 1994 version. Neither term appears in the 2000 White Paper.

The 2009 White Paper, however, made 11 references to rules-based order, including to the variants rules-based international order and rules-based global security order, but only two to international law. The 12 references to rules-based in the 2013 White Paper preceded either international order, global order, regional security order, global security order, and, confusingly, international global order, or just order. The six mentions of international law include international humanitarian law.

By the time the 2016 White Paper appears we find 59 mentions of the rules-based global order. The term international law occurs nine times in the document. The Defence scribes were getting their transcription act together.

For Australia the shift was mimetic as copying is de rigueur for many Australian strategists. The origin of the rules-based rubric can be seen in US strategic documents. Neither of President Clinton’s 1994 or President Bush’s 2000 National Security Strategies made reference to a rules-based order. Barack Obama’s 2010 Strategy only mentioned rules-based once although its is notable that he advocated the US “must now build the sources of American strength and influence, and shape an international order [italics added] capable of overcoming the challenges of the 21st century”.

By his next National Security Strategy in 2015 President Obama’s emphasis had shifted. While there are only five direct references to a rules-based international order much of the substantive argument is closely related. The 2015 Obama Strategy notes the US has an obligation “to lead the way in reinforcing, shaping, and where appropriate, creating the rules, norms, and institutions [italics added]” and to “uphold and refresh the international rules and norms”. For Obama the rules are American rules for American objectives enforced by America.

By the 2016 Defence White paper America’s key strategic objective had become Australia’s. The path leading to the eventual basing of US forces in the Northern Territory, confrontation with China far from Australian shores, and the acquisition of nuclear-powered submarines was by then pretty well laid out.

The shift from international law to a rules-based order framework in public diplomacy and strategic policy is a rational one on America’s part. The sovereign equality of states is a key principle underlying international law, denying America’s exceptionalism and hegemony. In theory, international law is politically neutral, and formally neutral among regime types, including between autocracies and democracies. The equality and neutrality aspects, disturbingly for US policy makers, allows for the possibility for non-democratic states influencing international law making.

Finally, international law is only applicable to those states who formally agree to be subject to it; this is the consensus principle. Ideally, international law is the antithesis of, and superior to, power politics in international relations. The reality is different.

Of course, American administrations have many practical reasons to be disillusioned with international law. There also are major constitutional, political, and cultural obstacles to American administrations joining treaties and therefore influencing contemporary developments in international law.

China, on the other hand, has been a vocal champion of international law and has joined hundreds of multilateral treaties and institutions since 1978, while also being selective about which international laws it adopts in its domestic law. Human rights rarely find their way into China’s legislation. A Brookings study concluded “China exhibits a flexible approach to international law that enables it to benefit from and exploit the international order without the need to advocate changes to the letter of the law in most areas”.

Restricting its foreign policy activities within the norms and processes of international law doesn’t sit well with the struggling hegemon, and American administrations have had to invent the imaginary but vague regime of a “rules-based global order”. As Tom Ginsburg has identified, as China grows in power and influence the structure of international law making creates the prospect of autocracies shaping future developments and undermining the liberal bias.

Unlike the Cold War era international law is no longer a fruitful arena for America. As power shifts occur and non-western states seek to claim the neutrality and sovereignty international law offers, the US has had to cloak its activities under a new disguise.

It is unclear whether Australian ministers or their advisers understand the distinction between international law and rule-based order, or perceive that for America that latter incorporates the former when, and only when, it suits America’s strategic interests.

Successive Australia governments seem prepared to go to war for a figment of the hegemon’s strategic imagination.

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