Tuesday 22 Jan 2019 | 00:26 | SYDNEY
Tuesday 22 Jan 2019 | 00:26 | SYDNEY

International law cannot save the rules-based order

Photo: Aniket Deole/ unsplash

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COMMENTS

18 December 2018 11:30

A curious aspect of the many accounts about meanings and significance of the “rules-based order” has been the relative silence from international lawyers.

It is increasingly clear that this core aspect of the rules-based order, stability fixed on universal legal rules, is now all but unattainable in the Indo-Pacific.

The most authoritative rules on which global order is based are precisely those agreed between states to have legally binding status. It is primarily political voices that advocate for the “rules-based order” however, they often assume that they also embody lawyers’ commitment to the “international rule of law.” Yet, focusing directly on international law, it is increasingly clear that the legal core of the overburdened rules-based order may already be irreparably fractured.

Perennial efforts to more precisely define the rules-based order, and related concepts such as “liberal international order,” gravitate toward key normative principles and post-Second World War institutions, but without settling on a definitive agreed meaning. Such efforts have striking parallels in international legal scholarship, which is engaged in an equally fraught discourse to define the “international rule of law” in response to seemingly unprecedented challenges. In practice, both are quests for an unattainable holy grail, since the central concepts embody the very disputes and tensions that have necessitated interrogation of global and legal order in the first place.

A defining structural ideal is nevertheless embedded in both concepts; that the rules governing the global political and legal order should remain unified within the constraints of a single coherent system. International legal scholarship has long studied threats of “fragmentation,” whereby presumptively universal legal rules diverge between different institutions, and increasingly between different regional contexts. One of the most discussed books in the academy is currently Anthea Robert’s Is International Law International? in which she persuasively demonstrates that powerful states conceive and interpret the most fundamental rules and ideals of international law in divergent and often conflicting ways.

Advocates for variations of the rules-based order equally appeal for coherence in the authority and sources of rules. The anxiety of policymakers and scholars alike is not that rules will disappear from key domains of global politics, but rather that fragmented and competing bodies of rules will emerge in which rights and obligations of states vary across regions, incapable of reconciliation within an agreed system.

More specifically, predominantly Western voices have sought to confirm that unified understandings are properly to be found in the institutions and understandings of law defining the post-Second World War, and especially post-Cold War, status quo of international order.

It is increasingly clear that this core aspect of the rules-based order, stability fixed on universal legal rules, is now all but unattainable in the Indo-Pacific.

In a working paper published this month for the Berlin Potsdam Research Group, I made the case that China is establishing a new regional equilibrium between its geopolitical power and distinctive national conceptions of law. This comprises a rising Chinese “geolegal order”: a subsystem of rules designated by China as “law” are increasingly effective in structuring security and political relations within the geographical confines of East and Southeast Asia but fragmented from global legal order.

The research explores fragmentation in three key areas of maritime rules: freedom of navigation; the authority of third-party and judicial settlement; and, territorial claims under UNCLOS.

Rising Chinese power is carving out a geolegal order within which states are incentivised to acquiesce and undertake decisions by reference to Chinese rather than universal interpretations of the law. Calls to recommit to an “international law based order” may thus perversely have a more contested meaning than a “rules-based order” in these cases, since the latter is informed by recognised legal interpretations of UNCLOS long held by the US and its allies.

Claims by a rising China for altered rules and institutions of international law were never a threat to overturn global legal order as a whole, but rather of fragmentation in areas crucial to Chinese security and strategic interests. These narrower aims have led Greg Raymond to argue that, although “China clearly wishes to establish an exception” to UNCLOS in the South China Sea, in so doing “they will not pose a threat to the fundamental integrity of the international system”. Yet fragmentation confined to the most consequential security and geopolitical domains seems a pyrrhic victory, premised on an eviscerated international rule of law and thereby rules-based order.

The Australian Department of Foreign Affairs and Trade has refocussed on competitive logics in the region, observing that whereas “the pursuit of closer economic relations between countries often diluted strategic rivalries”, the perceived return of “geo-economic competition could instead accentuate tension.” In light of these trends, DFAT announced the creation of a section devoted to promoting geoeconomic interests. The escalation of strategic rivalry applies no less to regional geolegal competition, which thus demands an equivalent institutional comprehension and strategic response if Australia is to promote its conceptions and interpretations of international law.

Since completing my working paper, the evidence of a rising and increasingly effective Chinese geolegal sphere is mounting.

Despite the Philippines’ success in the 2016 South China Sea Arbitration, at the most recent ASEAN summit President Rodrigo Duterte criticised US freedom of Navigation operations aimed at defending those same claims: “China is already in possession. It’s now in their hands. So why do you have to create frictions, strong military activity that will prompt a response from China?” In the contest to define and defend the regional rules-based order, it is “increasingly fanciful” to act as if China will be dislodged from its maritime claims and the region returned to relations agreed through a universal system of international law.

China’s rising geolegal order cannot yet, and should not, be ordained with the status of law so long as it remains a system of self-judging edicts, and its subjects obey solely by virtue of political and economic self-interest.

Yet, through history, it has been the fate of effective rules-based orders for conspicuous applications of raw power to recede from view, and to be transformed into systems of legal obligation shaped by a leading global power. The confluence of shifting regional power balances and competing legal conceptions have already fragmented the international rule of law in the Indo-Pacific. In that sense, the most authoritative element of the rules-based order has already failed where it mattered most.

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