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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

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The power of example: America’s presence in Diego Garcia

In remarks delivered at the US State Department in early February, President Joe Biden championed the rule of law as part of “America’s abiding advantage” and spelled out his vision for a nation leading “not just by the example of our power but by the power of our example”. In its swing toward competition with Beijing, the US has made every effort to draw attention to China’s disregard for international law, while conveniently ignoring that law’s application to the US military presence on Diego Garcia and the US presentation of itself as a champion of the rules-based order.

Diego Garcia is the largest of 55 islands split off by the United Kingdom from its Seychelles and Mauritius colonies to create the British Indian Ocean Territory in 1965. Devised exclusively for military use, the BIOT has been the key US strategic outpost in the Indian Ocean since 1966. Shuttering civilian industry and removing Diego Garcia’s original inhabitants paved the way for initial construction of British-US military facilities in 1967. These facilities were used to great effect in tracking the Soviet navy throughout the Cold War, although it was India’s request for American support against China in the 1962 Sino-Indian War that drove Amercia’s initial request for access to the archipelago. The Chagossian population was given the option to resettle in Mauritius or Seychelles. Some were able to relocate to the UK. This unceremonious exile went largely unremarked at the time – to most, it was a small subplot in the high drama of the Cold War. But not to Mauritius, nor to the Chagossians.

Diego Garcia became a critical node of American expeditionary warfare in Afghanistan and Iraq. It remains an invaluable operating location in a region with few permanent American bases. But rules and values are now at the centre of intensifying competition between Washington and Beijing. While the US claims the Chinese Communist Party is seeking to overturn the rules-based order, it has done so in the face of Mauritius’ calls for restoration of its territory and near-universal rejection of British claims upon the archipelago.

Attempts to justify a continuation of British control of the Chagos Islands look like destroying the rules-based order in order to save it, and reinforce China’s vision of world in which the weak suffer what they must.

Mauritius has the law on its side. A prolonged campaign by Mauritius to confront the UK over the status of the Chagos Islands was finally addressed by the International Court of Justice in 2019. In a stunning rebuke, the court handed down an advisory opinion which stated that Britain’s claim to the archipelago was illegitimate and that its retention of the archipelago constituted a failure to fully decolonise. A subsequent non-binding UN General Assembly resolution, passed by an overwhelming majority, demanded that the UK withdraw its “colonial administration” from the islands by the end of 2019. In 2021, the International Tribunal for the Law of the Sea (ITLOS) added its own confirmation of Mauritius’ sovereignty over the Chagos Archipelago, and criticised the UK’s failure to comply with the 2019 UN resolution.

The US is not inclined to abandon its strategic foothold in the Indian Ocean, nor is the UK’s Conservative government prepared to relinquish its claims to this colonial holdover. Both fear the potential consequences of ceding control, being subject to the whims of a state that might evict them from their unsinkable aircraft carrier. Admittedly, returning the islands creates risk – sovereignty trumps lease rights. A future Mauritian government might be less welcoming of the US and could revoke the lease. The US would also likely be forced to negotiate for benefits that it currently enjoys.

But the Mauritian government has sought to assuage those fears by offering, twice, to lease the land to the US for up to 99 years, if it is returned to their control. Mauritius’ UN ambassador made clear that it favoured a continued US presence at Diego Garcia, as well as its stabilising influence in the Indian Ocean region. Mauritius’ prime minister offered his own assurances following the ITLOS judgement, stating that “The end of UK administration has no implications for the US military base at Diego Garcia, which Mauritius is committed to maintaining”. Mauritius has offered both the US and UK a way to underline their commitment to the rules rather than flout them, while maintaining critical military access well into the next century.

US naval base at Diego Garcia in the 1970s
(US Navy Seabee Museum/Flickr)

Thus, the Biden administration has an opportunity to remove tension between its hard strategic interests and its declared support for a rules-based order. In consultation with London, Washington should move quickly, announcing support for the transfer of the Chagos Archipelago to Port Louis’ control, accept the offered 99-year lease and sign a defence agreement with a democratic partner as an equal under the law. The fact that the British political opposition has already telegraphed its intent to comply with the UN directive at the earliest opportunity is further reason for haste. With international opinion increasingly opposed to continued British control of the islands, the case for their return is not only ethically correct but strategically sound.

To continue in the current arrangement leaves the UK and UK open to criticism for hypocrisy in their approach to international law. London’s refusal to comply with the ITLOS ruling can be likened to Beijing’s rejection of the Permanent Court of Arbitration’s 2016 award on the South China Sea, as both legal bodies are convened under the UN Convention on the Law of the Sea (UNCLOS). It is only with a shocking lack of self-awareness that either country could accuse Beijing of undermining the rules-based order while defying the UN over Mauritian sovereignty. Better to seize this opportunity to demonstrate commitment to the rule of law than to remain defiant and isolated on a question of human rights.

By demanding China conform to the rules-based order, the US and the UK have set a narrow rhetorical gate through which they themselves must walk. Attempts to justify a continuation of British control of the Chagos Islands look like destroying the rules-based order in order to save it, and reinforce China’s vision of world in which the weak suffer what they must.

Decisive action on behalf of the Biden administration to facilitate the return of Diego Garcia is not only ethically correct, but one that reinforces American commitment to international law and human rights. By committing itself to this course, Washington can avoid negative impact upon American strategic interests, while simultaneously bolstering the rules-based order in the Indo-Pacific.

What does America think the rules-based order is for?

This week we launched the latest project to emerge from the Lowy’s Institute’s Australia’s Security and the Rules-Based Order project, a debate feature on America and the Rules-Based Order. It’s a textbook example of constructive public debate. Each of the six expert participants state their case plainly and respond directly to objections and counter-arguments. Mercifully, none of them are pre-occupied with definitions. 

It’s tempting to think of definitions as a pre-condition for debate. We have to agree on what we are talking about before we can argue the merits. But I think of it the opposite way: the debate is itself a struggle to work towards a definition. In this case, what does America think the rules-based order is for?

For some in the debate, the purpose is to entrench and even sanctify an American-led international system. Realists might put it less politely, that the rules-based order is a fig leaf, a polite fiction that masks the harsh realities of power. Others say the rules-based order can protect US interests as its power wanes relative to China, or that it can help democratic nations collectively defend themselves against China and other authoritarian rivals. 

But none of the participants explicitly argue for the rules-based order as a tool to expand American ideals and ideology, specifically into China. Patrick Porter makes the case against such a definition of the order (“Washington would be better advised to steer clear of grandiose doctrines and schemes to domesticate the world to its values”), but it’s not clear who he is debating. He mentions that President Joe Biden wants to call a “Summit for Democracy”, but like many of the participants in this debate feature, Biden couched that idea in essentially defensive terms. The aim seems to be to protect democracies against backsliding and foreign interference, not democratise America’s rivals.

A daily press briefing resumes at the US Department of State under the Biden administration (US Department of State/Flickr)

Biden may yet have expansive plans for democracy promotion in Asia, but the intellectual tide in Washington is against him. There’s a new conventional wisdom which argues that efforts to use free trade and the internet to encourage political liberalisation in China, ideas which were popular during the Clinton administration and even under George W. Bush, were hopelessly naïve and have failed utterly. 

I tend to think such judgments are still premature (the internet is the greatest information revolution since the printing press, and it is barely 30 years old), but that’s beside the point. More important is that Americans in power seem to believe it. In fact, it was entrenched in the Trump administration’s National Security Strategy, and two leading Asia advisers in the Biden team, Kurt Campbell and Ely Ratner, have said much the same thing.

Raising the ideological stakes of the most important bilateral relationship on earth would only make America’s already precarious position in Asia worse. It should be aiming to lower the stakes.

In turn, this suggests that Washington foreign policy elites implicitly acknowledge the long-term sustainability and legitimacy of China’s authoritarian model. When it comes to liberalism and democracy, then, the US is in a defensive crouch rather than in an expansionary mood. That suits the times. Raising the ideological stakes of the most important bilateral relationship on earth would only make America’s already precarious position in Asia worse. It should be aiming to lower the stakes.

And so should Australia. Its foreign and security policy should be geared towards encouraging the US to think about the relationship with communist China not as an ideological contest or a struggle for supremacy, but as a permanent accommodation between two great powers in which China will have significant advantages – not only will it be economically larger, but it is also the resident power in Asia.

Australia is being forced to think about its security in a new way. Australia is no longer a rich nation surrounded by poverty, allied with the world’s only superpower, but a rich, relatively small country in a region of rapidly growing wealth, and home to a nation set to overtake the US by many measures of national power. 

But that’s not Australia’s biggest problem. So great are China’s advantages that Australia should prepare itself for the possibility that America may choose to give up its position in Asia rather than compete with China. That would leave us with the biggest foreign and security policy challenge of all: defending ourselves and our interests without the help of the United States.


Main image via Flickr user Thomas Hawk

Bringing space law into the 21st century

Throughout 2020, a renewed debate has taken hold over international legal frameworks and the governance of outer space. A flurry of outer space activities has ensured this debate has gained extra attention. These include China’s Chang’e-5 mission, which in December landed an unmanned craft on the moon to collect rock and soil samples; the recent Japan Aerospace Exploration Agency (JAXA) capsule, which returned to earth in South Australia after having captured rocks from an asteroid; and the launch in November of SpaceX’s NASA-crewed Dragon spacecraft “Resilience”.

Ongoing space discoveries have also driven a desire to set the rules of play. NASA announced in October that water had been found on the Moon, which raised expectations that the Moon may be capable of being used as a base for future space exploration.

But there has also been a competitive aspect. The launch of the United States Space Force (USSF) underscored the role that the militaries play in space. The development of anti-satellite capabilities in recent years by China, Russia and India has also shown why outer space is increasingly seen as a contested domain. The US sought this year to promote the Artemis Accords, described as “a shared vision for principles, grounded in the Outer Space Treaty of 1967, to create a safe and transparent environment which facilitates exploration, science and commercial activities for all of humanity to enjoy”. Australia signed up to this initiative in October.

A critical space law issue is the division between civil exploration and use of outer space and military activities in outer space.

When combined, these developments are fuelling debate as to whether the existing outer space legal regime is sufficiently robust to deal with 21st-century challenges or whether alternate frameworks are required. While the norms, principles and treaties in a number of international common spaces are under challenge, outer space is especially contested as new public and private entities become more active and assertive.

The legal and governance challenge that exists with respect to outer space is that the core legal frameworks for space law were all agreed upon during the Cold War. The 1967 Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies (aka the Outer Space Treaty) is the founding treaty, and was supplemented by the separate 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement). While both treaties have been in force since 1967 and 1984, respectively, adoption has been variable, with 110 parties to the Outer Space Treaty and only 18 parties to the Moon Treaty. Australia has adopted both. While the five permanent members of the UN Security Council are all parties to the Outer Space Treaty, none have adopted the Moon Treaty.

Satellite tracking dishes at the Instituto Nacional de Tecnica Aerospacial (INTA), at Montaña Blanca in the Canary Islands (European Space Agency/Flickr)

Under the existing law, states do not exercise sovereignty over outer space. While the Outer Space Treaty makes clear that the moon and other celestial bodies are not subject to national appropriation (Article II), that the exploration and use of space shall be “the province of all mankind” (Article I), which is to be used exclusively for peaceful purposes in which military activities are forbidden (Article IV), these principles are being tested by new space activities.

One of the overarching international law principles that applies in outer space is “common heritage”. The common heritage principle was first promoted in the 1960s and applied to the deep seabed. Similar terms are found in the Outer Space Treaty and Moon Agreement. The common heritage principle includes non-appropriation of resources, benefit sharing and associated principles such as the freedom of scientific research, freedom of access and environmental stewardship.

Governance of outer space is also problematic, given that traditional notions of state sovereignty do not apply, and there is no overarching governing body.

Governance of outer space is also problematic, given that traditional notions of state sovereignty do not apply, and there is no overarching governing body. Within the UN, the General Assembly established in 1959 the Committee on the Peaceful Uses of Outer Space (COPUOS). The Committee has a mandate to review “international cooperation in peaceful uses of outer space, studying space-related activities that could be undertaken by the United Nations, encouraging space research programs and studying legal problems arising from the exploration of outer space”. However, the focus of COPUOS has been on peaceful uses of outer space, and not current concerns such as the militarisation of outer space.

While there at least exists a broad legal and governance framework for peaceful activities in outer space, there is ambiguity with respect to military activities. This has sparked a flurry of activity among international lawyers seeking to identify and clarify what laws apply to military activities in outer space, including the Woomera Manual project, which aims to develop a manual that “objectively articulates and clarifies existing international law applicable to military space operations”. Parallel initiatives include proposals for the development by the Conference on Disarmament of a Prevention of an Arms Race in Space Treaty, which has been subject to UN debate in various forums since 1985.

Australia’s modern engagement with developments in space through the Australian Space Agency and an Australian Civil Space Strategy, creates a clear need to robustly assess the Outer Space Treaty and the Moon Agreement, including implications for the Australian Defence Force. There is also an active debate as to whether Australia should be engaged in space mining.

Milky Way at Sugarloaf Rock, Dunsborough, Western Australia (Trevor Dobson/Flickr)

What role then can Australia play in seeking to bring greater certainty and clarity to this discourse over space law? It may simply be a question of either supporting the status quo or proposing new international legal instruments and mechanisms.

Australia could commence a diplomatic strategy to get others to sign up to the Moon Agreement. Although in force, with only 18 parties it lacks credibility within the international community. That task would be significant and one that Australia would need to undertake alongside a like-minded Moon Agreement partner.

Promoting a new international legal framework would be just as challenging, especially at a time when multilateralism is under strain.

Australia’s adoption in October of the Artemis Accords is something of a middle ground and points to how Australia may seek to act in what increasingly appears to be a fluid outer space discourse. NASA launched the Artemis Accords initiative in May, and the first signings took place in October. To date, in addition to Australia, nine countries have signed up, including Canada, Italy, Japan, Ukraine and the UK. The Accords seek to reaffirm peaceful purposes, transparency in information sharing, interoperability, emergency assistance, registration of space objects, space resources, the deconfliction of space activities and orbital debris. However, they do not take the form of a new treaty, and are rather stated to form a “political understanding regarding mutually beneficial practices for the future exploration and use of outer space”.

A critical space law issue is the division between civil exploration and use of outer space – as reflected in the Artemis Accords – and military activities in outer space. More needs to be done in both of these arenas – first, to provide clarity as to whether the established Cold War treaties are fit for purpose with respect to an expanding array of civil activities, including space mining and the application of common heritage principles; and second, with respect to militarisation of outer space and how comfortably that sits with an area traditionally seen as reserved for peaceful purposes.


Main photo courtesy NASA’s Marshall Space Flight Center/Flickr

Who was Hugo Grotius and what is a “Grotian world”?

On Monday, the UK-based think tank Policy Exchange awarded Australian Prime Minister Scott Morrison the inaugural Grotius Prize “in recognition of his work in support of the international rules-based order”. In his acceptance speech, Morrison spoke of the award’s namesake, the 17th-century Dutch thinker Hugo Grotius.

“More than 400 years ago,” Morrison said, “Grotius dreamt of a new framework for inter-state relationships.” Morrison went on to present his vision for a world that is “more Grotian”, a world in which international relations are shaped by common rules, laws and understandings, and “like-minded nation-states can make a difference”.

But who was Hugo Grotius? What was his dream? And what would a more Grotian world actually look like?

Grotius is a writer more cited than read and more mythologised than understood. There are good reasons for this. Much of his work was unoriginal, inconsistent, and written in an almost impenetrable style. Most of what people know of Grotius comes not from his own works but from the 20th-century writings of the Australian international relations theorist Hedley Bull, his “English School” counterpart, Martin Wight, and, before them, the German-British international lawyer Hersch Lauterpacht, all of whom had their own agendas and ideas of what it might mean to be “Grotian”.

Although he published more than 60 texts in his lifetime, Grotius is best known for his 1625 work The Rights of War and Peace (De Jure Belli ac Pacis). This work is often said to have been composed in response to the Thirty Years’ War that ravaged Europe from 1618 to 1648, but Grotius himself confirmed that this was not the case. Rather, many of its central ideas had already appeared in earlier works commissioned by the Dutch East India Company and the States of Holland to address key issues of trade and territorial control stemming from Spain’s imperial ambitions.

The Rights of War and Peace, 1758 edition (Yale Law Library/Flickr)

These earlier works drew on the overarching idea that the relations of states ought to be based on a set of commonly held rules or laws, derived from the law of nature. While defending the Dutch East India Company, Grotius made his most direct contribution to the development of international law by establishing the freedom of the seas and trade, a contribution noted in Morrison’s speech. To justify the Dutch Revolt against Spanish rule (1568–1648), he employed existing ideas about sovereignty to establish the legitimacy of Dutch rule over its territory and people. In both cases, he also drew on the just war tradition, a well-accepted set of rules devised to govern the conduct of war, to defend the actions of the Dutch East India Company and the States of Holland in repelling the Spanish.

These arguments formed the basis of The Rights of War and Peace. Written while Grotius was imprisoned in Loevestein Castle for his role in the politico-religious controversies of the time, it was intended both as a wide-ranging response to the general climate of conflict in Europe and an attempt to win back the support of the Dutch state and end his incarceration (and later exile).

Although it is rarely referred to today, the moral aspect of Grotius’s work speaks to the idea of common understanding that is too often pushed aside by the emphasis on laws, agreements and institutions in accounts of the contemporary rules-based order.

To the extent that it presented a “dream” for future international relations, The Rights of War and Peace expounded Grotius’s earlier idea that the relations of states should be governed by commonly agreed rules and laws, derived from natural law and manifested in the just war tradition. To be clear, Grotius did not espouse the idea of a rules-based international order or develop a framework for its operation. Nor did he discuss the idea of “international society” in any real detail. That all came much later, with the development of the “Grotian tradition” of international law and international relations in the 20th century.

Rather, what Grotius was interested in, alongside minimising the horrors of war, was identifying the principles of moral conduct that would support and enable international relations founded on common agreement. Foremost among them were moderation in the exercise of rights (even the right to go to war), respect for common humanity, altruism and charity. Although he conceived them in religious terms – contrary to the common assumption that he “secularised” international law, Grotius was also a theologian whose ideas about religious toleration and doctrinal unity drove his account of international law – he also argued that these values should guide the moral conduct and treatment of all, regardless of faith.

Although it is rarely referred to today, the moral aspect of Grotius’s work speaks to the idea of common understanding that is too often pushed aside by the emphasis on laws, agreements and institutions in accounts of the contemporary rules-based order. Yet, this is what Grotius thought would bind states together, motivate them to uphold rules and agreements and avoid the excesses of war.

What, then, would a more Grotian world actually look like? In the absence of inter-state war, it would be a world in which states upheld their commitments to international law, took seriously their duties to uphold principles of common humanity, and treated those over whom they have power with altruism, charity and care.

If this is a world that Australia is genuinely committed to, then a focus on upholding our international legal and moral obligations on issues from climate change to asylum seekers would be a very good place to start.
 

Renee Jeffery is Professor of International Relations at Griffith University and author of Hugo Grotius in International Thought (Palgrave, 2006).

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