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The 2016 Defence White Paper describes a rules-based global order as a “fundamental strategic interest”. 

This project, supported by the Department of Defence’s Strategic Policy Grants Program, aims to lead a national debate on the rules-based order and its implications for Australian security and defence. It will connect the legal, political, and historical debates about the nature of the global order with the practical realities of Australia’s strategic environment. It will address how the order can evolve to meet new technological challenges and modes of warfare, including grey zone operations.

Cover image: Official U.S. Navy / Flickr

Experts

Ben Scott
Director, Australia’s Security and the Rules-Based Order Project
Sam Roggeveen
Director, International Security Program
Thomas Wright
Nonresident Fellow
Bobo Lo
Nonresident Fellow
Sasha Fegan
Research Associate, Australia’s Security and the Rules Based Order Project

Latest publications

An opening on the ICJ and an opportunity for renewal

In the early 20th century, the Peace Palace in The Hague – seat of the International Court of Justice (ICJ) since 1946 – was envisioned as “a sort of holy place”, “prized … by thinking men throughout the world … to which, in … danger of war between any two countries, the minds of men would turn”. Today, this talk of “thinking men” sounds retrograde (implying the exclusion of women and those men deemed “unthinking”, many at the time still enslaved as a matter of national law). Nonetheless, there was always something radical, even other-worldly about the idea of states submitting their most high-stakes disputes to a panel of 15 independent judges, expert in the world’s principal legal systems.

With the very worldly event of an ICJ election imminent (to fill a seat made vacant by the death of Judge James Crawford), United Nations member states have a chance both to affirm and renew the ambition of that vision. Current nominee, Hilary Charlesworth, Harrison Moore Professor of Law and Melbourne Laureate Professor at the University of Melbourne, and Distinguished Professor at the Australian National University, is uniquely qualified to aid that renewal.

Hilary Charlesworth, as judge ad hoc, at the opening of the hearings in the case concerning Whaling in the Antarctic, Australia vs Japan, on 26 June 2013 (UN Photo/ICJ-CIJ)

The ICJ is a very particular court, composed by and for purposes of resolving disputes among nation-states and to issue advisory opinions on legal questions posed by authorised international organisations.

Moreover, as the principal judicial organ of the UN, the ICJ holds extraordinary symbolic significance. Members of its bench serve, per the ICJ Statute, as “independent judges” elected “from among persons of high moral character”. They must “possess the qualifications required in their respective countries for appointment to the highest judicial offices” or “recognised competence in international law”. Collectively, they must ensure “representation … of the principal legal systems of the world”.

Its caseload is replete with the thorniest issues confronting the globe and recent ICJ elections evidenced fundamental geopolitical realignment underway.

Under the UN Charter, all UN members states are automatically parties to its constitutive instrument, the ICJ Statute, and undertake to comply with its rulings when party to disputes submitted to it – submission that is contingent upon states’ agreement. Nominations of individuals for judicial election are, however, one step removed from states’ grasp. Candidates are nominated not by national governments but by individuals comprising “national groups” with varying degrees of independence from government. The process then moves to the UN: the Security Council and General Assembly vote concurrently but independently until an absolute majority in each body has selected the same candidate.

Charlesworth has been nominated by Australia’s national group to fill the remainder of the term for which Crawford was elected, expiring in February 2024. The Greek national group has also nominated a candidate, Linos-Alexandre Sicilianos, Professor of Law at the University of Athens and a former President of the European Court of Human Rights. Less than a month after Crawford’s untimely death, the UN Security Council set 5 November 2021 as the date upon which states would vote to fill this vacancy. This comes at a critical juncture for the institution; its caseload is replete with the thorniest issues confronting the globe and recent ICJ elections evidenced fundamental geopolitical realignment underway.

In this context, Charlesworth’s candidacy has several noteworthy features. First among these is her prior experience as judge of the very court to which she has been nominated. Charlesworth has been appointed judge ad hoc in two contentious rulings of the ICJ: Arbitral Award of 3 October 1899 (Guyana v. Venezuela) and Whaling in the Antarctic (Australia v. Japan: New Zealand intervening).

International Court of Justice at The Hague (UN Photo/ICJ/Jeroen Bouman)

Charlesworth’s election would preserve a sense of the ICJ’s imperviousness to political vagaries. That is because it has been longstanding practice, in the great majority of cases, for an ICJ seat vacated by death or resignation to be filled, for the remaining term in question, by a nominee of the same nationality as the departing judge, even in the rare instances of such elections being contested. That practice was upheld, for instance, after both US- and Chinese-nominated judges resigned in 2010, and more recently, in 2018, when a Japanese-nominated judge resigned mid-term.

As a common law-trained jurist, Charlesworth’s election would also help ensure the Court’s representativeness. Only four of the 14 current judges are common lawyers while around 40 of the 193 states of the world have common law systems; a significant number more have hybrid systems incorporating common law features. Given her regional engagements – through the Asian Society of International Law, for example (where she served on the Executive Council) – Charlesworth is highly attuned to this jurisprudential diversity.

Charlesworth’s candidacy is also distinguished by the unusual combination of fearless critique and constructive engagement apparent in her scholarship: work for which she has garnered the field’s highest accolades: from the American Society of International Law; the International Studies Association; the Hague Academy of International Law; the Institut de Droit International and elsewhere.

Recognition notwithstanding, Charlesworth has consistently shown herself beholden to no one. Her playfully titled 1993 article on feminist legal scholarship, “Alienating Oscar”, took its name from colleagues’ reported alarm that her questioning of international legal orthodoxy might alienate the eminent international lawyer Oscar Schachter. In fact, the argument landed well with Schachter, evidencing Charlesworth’s skill at engaging diverse audiences with the acuity of her analysis.

It would be more than 50 years before “thinking men” turning to the ICJ would face a female judge, after Rosalyn Higgins was elected to the Court in 1995. Today, three among the 14 ICJ judges are women.

If elected, Charlesworth would be only the fifth female-identifying person elected to its bench in the ICJ’s 76-year history. With Charlesworth’s nomination, UN members have an opportunity to advance efforts against persistent inequality, while gaining a jurist of the utmost prowess.

Disclosure: Although they have never worked together closely, the author of this post once contributed to a book edited by Professor Charlesworth and, like many in the international law community in Australia, considers Professor Charlesworth a friend.

An arms control stocktake

Nuclear politics and nuclear policy shifts get plenty of coverage – atomic-powered submarines for Australia, China’s missile silo fields, North Korea’s enrichment activities in Yongbon, Iran’s compliance with international monitoring, as well as weapons modernisation all receive considerable press, and rightly so.

With developments coming at such a pace though, there is much value in examining the international legal architecture to see what lies ahead for key nuclear arms control treaties. We can of course turn to the “politics” by surveying state action and rhetoric, but we can also turn to the “law” and check for developments in the rules-based global order – to assess how the multilateral treaties are faring, whether in force or not, which are intended to constrain nuclear proliferation, encourage disarmament, ban nuclear testing and control nuclear materials.

Treaties where states meet, discuss and cooperate to manage the many and varied security dangers associated with nuclear weaponry.

After all, it is via such treaties where states meet, discuss and cooperate to manage the many and varied security dangers associated with nuclear weaponry. With two significant meetings on the horizon, the first for the ban treaty and the second for the non-proliferation treaty, it will be telling to see how each regard the other.

1970 Treaty on the Non-Proliferation of Nuclear Weapons (NPT)

As the cornerstone treaty of the arms control regime, now in force more than 50 years, a pandemic-delayed review conference, or RevCon, for the NPT has been set for 4–28 January 2022. This gives the 191 member states the opportunity to discuss and assess developments and progress in the three broad areas of non-proliferation, disarmament and peaceful use of nuclear energy.

This conference, held every five years, operates with fairly fixed dynamics; the 186 non-nuclear weapons state parties will hear how each of the five nuclear weapons states are holding up their side of the grand bargain. The five nuclear weapons states – US, UK, France, China and Russia – have each accelerated modernisation activities and the non-nuclear weapons states will press them to explain how these activities fulfil their disarmament obligations under Article VI.

A simple indicator of a success is whether states reach consensus to a final document. In 2000 they agreed to 13 steps, and in 2010 to 64 action points. This upcoming review conference is likely to have an existential quality about it, with the NPT originally due to expire in 1995 and now indefinitely extended. At double its intended age, how will its achievements and failings be articulated, and its new multilateral treaty that bans nuclear weapons be regarded?

2021 Treaty on the Prohibition of Nuclear Weapons (TPNW)

In January, the TPNW or colloquially termed “Nuclear Ban Treaty” officially joined the family of nuclear arms control treaties, with 55 state parties now gearing up for their first-ever meeting. Without taking the filial pun too far, the TPNW, like a respectful child, agreed to move their inaugural meeting of state parties (1MSP) from January to 22 March 2022, thereby accommodating the NPT.

A well-functioning monitoring system that ensures that all nuclear tests, whether underground, undersea or in the atmosphere are detected is essential for curtailing proliferation.

States will meet to commit to a variety of measures that give effect to obligations such as universalising the ban treaty (Art. 12) and setting a deadline for the elimination of nuclear weapons for any nuclear armed states that may join in future (Art. 4).

Eighty-four per cent of state parties to the TPNW are also party to one of five Nuclear Weapons Free Zone treaties. Is it a coincidence that these five nuclear weapons free zones are precisely where nuclear armed states aren’t? The push for another nuclear weapons free zone treaty, this time in the Middle East, has frustrated consensus to a final outcome document at both the 2005 and 2015 NPT review conferences. The degree to which the TPNW will champion this cause remains to be seen though we can expect it to feature prominently at both upcoming meetings.

Comprehensive Test Ban Treaty (CTBT)

The CTBT opened for signature in 1996. While not officially in force, it has provided the international community with a highly effective verification system capable of detecting a nuclear explosion anywhere on the globe. The 185 state signatories have worked with the Comprehensive Nucelar-Test-Ban Treaty Organisation (CBTBO) for the past 25 years to develop monitoring technologies and share information.

Last week’s biennial conference, led by Australia’s Robert Floyd as CTBTO Executive Secretary, promoted the entry into force of the CTBT. In addition, delegates discussed ways to universalise the treaty, encourage states to maintain their facilities, and invest in them to optimise the verification system now and into the future. With states facing financial strain from the pandemic, this is no easy task. A well-functioning monitoring system that ensures that all nuclear tests, whether underground, undersea or in the atmosphere are detected is essential for curtailing proliferation.

1987 Convention on the Physical Protection of Nuclear Material and 2016 Amendment (CPPNM) and draft fissile material treaties

The International Atomic Energy Agency (IAEA) has managed this agreement between 155 states since 1987, and the 2016 amendment broadened the scope and strengthened controls to ensure that states who use nuclear energy for peaceful purposes store and transport all nuclear material safely. State parties meet every five years with the next review conference set to occur in 2022.

Management of fissile material stocks is a separate disarmament effort that if realised would limit further production of the ingredients essential to nuclear weapons – highly enriched uranium (HEU) and plutonium. The aim is to codify the moratorium on fissile material production to block this nuclear pathway.

The negotiation process for the Fissile Material Cutoff Treaty (FMCT) has been at a standstill since 1995 due to disagreement over the “rules of procedure” and “program of work”, though this is largely a smokescreen for substantive disagreement about scope. Disparity between India and Pakistan will become entrenched if the treaty only manages new fissile material and not existing stocks. The most recent informal consultative meetings held in 2017 and 2018 were described by the chair as a “novel construct to help bridge the divide”.

Infrasound arrays as part of the global monitoring for nuclear tests under the CTBTO, Davis Base, Antarctica (CTBTO/Flickr)

Of immediate interest is the way the NPT will regard the TPNW, both in the lead-up and at its upcoming review conference in January and vice versa in March. This brief glance at the family of nuclear weapons control treaties shows the need for bridge-building generally, not only between nuclear and non-nuclear weapons states, but also between the separate multilateral agreements, each with a “life” and therefore a trajectory of its own.

The stability and formality of treaty review conferences bring some measure of control to the unpredictability of nuclear politics.

Defending the liberal international order

Book review: G. John Ikenberry A World Safe for Democracy: Liberal Internationalism and the Crises of Global Order (Yale University Press, 2020)

Big ideas about how the world works, and how it should work, are getting more attention as old assumptions are jolted by the pandemic, the Trump presidency and the rise of China, to name just a few.

The concept of liberal internationalism has taken a particular battering. The phrase is now associated both with the neoconservative agenda of aggressive democracy promotion and, more recently, naïve assumptions that a rising China would be incorporated into the US-led international order.

Perhaps the best-known academic exponent of liberal internationalism is John Ikenberry. This bookA World Safe for Democracy: Liberal internationalism and the Crises of the Global Order – is his reckoning with recent events. Ikenberry responds to the gloomy present by laying out a long history: “seen from a two-century perspective, the project is as much a story of struggle as triumph”. He seeks lessons from the successes and failures of liberal internationalism, with the essential goal of “a world safe for democracy”. But he roundly rejects the arguments that liberal internationalism necessitates foreign intervention, or even explains America’s “imperial” post-9/11 military campaigns.

Ikenberry’s analysis provides a useful framework for understanding the Biden administration. Some of its foreign policy pronouncements clearly chime with Ikenberry’s prescriptions. National Security Adviser Jake Sullivan is among those thanked in the book’s acknowledgments.

Problems of modernity

Although liberal internationalism is typically pitted against the realist school of international relations, for Ikenberry the comparison amounts to apples and oranges: whereas realists are focussed on problems created by anarchy in international relations, liberal internationalists are focused on “how states cope with problems of modernity”.

Modernisation creates ever more economic and security interdependence. The resulting problems, and opportunities, necessitate greater international cooperation. Liberal democracies have cooperated most, establishing the norms and institutions that constitute the liberal international order. The liberal international order was a long time in the making, and it is now well into its unmaking.

Ikenberry marks the major inflection points. President Woodrow Wilson, whose famous quote about America’s goal in entering the First World War is included in Ikenberry’s title, synthesised the disparate elements of liberal internationalism in establishing of the League of Nations. The League failed to prevent another world war, but, as Ikenberry would have it, “would foster the long-term shifts in consciousness required to bring rules-based international order into being”.

US President Woodrow Wilson in Congress in 1917 recommending the US enter the war against Germany (Historica Graphica Collection/Heritage Images/Getty Images)

President Franklin Roosevelt began that process after the Second World War. Learning from Wilson’s mistakes, Roosevelt sought an order that was more global, more realist and more socially liberal. Ikenberry tells that US security was equated “with the stability of security relations prevailing worldwide” and US power would “underwrite the world order.” Roosevelt also sought to embed his “New Deal” social liberalism in the international order: Nazism had shown how threats to democracy could emerge from within.

Cold War dynamics prevented the United Nations from embodying this new order, but it grew in the western half of the emerging bipolar world. It was a “club” whose main members, the United States, Western Europe and Japan “shared an authentic belief that the ‘free world’ was not just a temporary alliance against the Soviet Union but a community of shared fate”.

Intriguingly, Ikenberry suggests that US leadership of the liberal international order may no longer be possible or necessary.

After the Cold War, these triumphant allies sought to globalise the liberal international order. But in becoming wider, the order became thinner and less effective. Membership was no longer conditional on common values. Liberal internationalism lost its link to “progressive and social democratic agendas” and came to look “less like a security community and more like a platform of rules and institutions for capitalist transactions”.

The imposition of neo-liberal policies on emerging economies was followed by counterproductive military interventions, especially after 9/11. With the arrival Donald Trump the breakdown of the liberal international order reached a crescendo.

Ikenberry insists that the breakdown of the liberal international order is chiefly due to internal problems rather than geopolitics. But the rise of China also looms large in his description of what went wrong. Sitting “both inside and outside the post-Cold War liberal international order”, China has been able to pick and choose.

Less international?

Ikenberry’s theories about US leadership of the liberal international order are perhaps his most complex and contentious. US leadership was necessary, but Washington had an incentive to restrain its exercise of power, so as to win the acquiescence of other states to US hegemony. Because the United States used “institutions to establish restraint and commitment” the resulting order was “somewhat independent of the balance-of-power and imperial logics.”

Ikenberry acknowledges scepticism that the US was, in fact, restrained but doesn’t try to dispel it. He notes, reasonably, that doing so would depend on unprovable counterfactuals. His bottom line appears to be that, either way, liberal internationalists had no better option than to align themselves with American power.

“Non-Violence”, the sculpture was a gift from Luxembourg presented to the United Nations in 1988 and is located outside UN headquarters in New York (UN Photo/Michos Tzovaras)

Intriguingly, Ikenberry suggests that US leadership of the liberal international order may no longer be possible or necessary. As American power declines the country will need to cooperate more with other liberal democracies and there “may even an opportunity to ... build a post-hegemonic consortium of like-minded states that could collectively underwrite a reformed liberal order.”

Rather than provide specific prescriptions, Ikenberry identifies questions for liberal internationalism and suggests some broad-brush answers. His overarching injunction is that, to correct the post-Cold War over-extension, liberal internationalists should go back to basics. That means recreating the club: “exclusive groupings within the wider international order” are still important for defending liberal values. Addressing global issues such as climate change requires inclusive organisations, even at the cost of reduced effectiveness.

He also seems to argue that liberal internationalism should become less international. In dealing with the illiberal world, democracies should restrain “their offensive liberal impulses”. They should become more defensive and domestically focussed, reconnecting “to progressive forms of nationalism” and – as FDR did – reconcile “open trade and free market capitalism with social protections and economic security”.

Much depends on China. If Beijing is, in fact, seeking “to perfect an authoritarian model of industrial society” that can “offer the world an illiberal pathway to modernity” then Ikenberry seems to allow that more “offensive liberalism” might be warranted. But the jury is still out.

Unlike realists, liberal internationalists “seek not only to explain the world as it is, but also to bring into being a world they would like to live in”. Ikenberry’s history is informative and his flowing prose persuasive but it’s not always clear which world he is describing. Either way, the fact that he can’t prove the existence of a liberal international order doesn’t weaken his argument that – especially after Covid-19 – the world needs more, but better-defined, liberal internationalism.

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