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Tuesday 22 Aug 2017 | 04:10 | SYDNEY
Tuesday 22 Aug 2017 | 04:10 | SYDNEY

Who makes the rules? A dialogue on law and power in Asia's new order

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COMMENTS

24 March 2017 09:06

This is a lightly edited transcript of an email exchange between Professor Hugh White, a regular Interpreter contributor and author of The China Choice: Why America Should Share Power, and Lowy Institute Senior Fellow Sam Roggeveen. The exchange took place over the course of a week, and just before the last round, they agreed to publish it on The Interpreter. The conversation began in response to Hugh White's latest op-ed in the Financial Review, which was critical of Foreign Minister Julie Bishop's recent Fullerton Lecture. White wrote:

The closer one looks, the clearer it becomes that talk of a rules- based international order assumes that international relations can work like national politics where a clear authority gets to set and enforce the rules.

But who could that authority be? At times it has been imagined that the UN might play that role, but no one takes that seriously any more. Australia itself, especially under Coalition governments, has been perfectly willing to defy the UN when we thought it suited us. Remember the invasion of Iraq, for example? So it is perfectly plain that when Julie Bishop speaks of the "rules-based order" she means one in which the rules are set and enforced by America.

Sam Roggeveen: I part with you on the question of a rules-based order. The idea that it can be equated simply to US power is too reductionist, in my view. You set up a stark distinction between national politics (the realm of order and authority) and the international realm (anarchical). But the Grotian in me says that’s much too stark. Yes, the rules-based order is dependent largely on US power, but that’s not the sum of it.

Hugh White: As I think I've argued before, I think the argument that there is an international analogue to the domestic political community is appealing but under-supported by the data...and I'm constitutionally averse to wishful thinking!

SR: Not an analogue, exactly, but there are parallels. So do you basically regard Hedley Bull’s idea of an 'international society' as fiction?

HW: No, I take Bull's concept of international society very seriously, but it's an anarchical society - so there is no superior rule-making power, unlike in a state. Nonetheless states can reach and respect agreements among themselves without that rule making authority. The whole mystery that Bull sets out to explore this how that happens. One thing is clear: it happens only when the order between the most powerful states is stable and agreed. So the order is prior to the rules. Julie Bishop's mistake is think that the rules constitute the order. But more specifically, she seeks to endow the old US-led order with superior legitimacy by identifying it with the rules, and presupposing that any alternative order would be rule-less. EH Carr spotted this trick in The 20 Years' Crisis, and warned against it.

SR: You say 'it happens only when the order between the most powerful states is stable and agreed’. I think that overstates it. International society is likely to be stronger under those circumstances, but it will never be entirely absent.

Then you say 'The order is prior to the rules'. That sounds plausible, but so does 'rules create order', wouldn’t you say? I think your formulation leans heavily on the question of power: the major states have to come to some kind of accommodation on the distribution/balance of power before rules can be created. But I would argue that rules can emerge from an environment in which there is agreement on authority. Authority can be related to power, but often it is not. The pope has no divisions, as Stalin pointed out. But the pope has tremendous authority. Same for the Oxford English Dictionary, which sets rules about English usage that are broadly observed despite the OED having no power to enforce them. To a lesser degree, the same goes for ASEAN and the UN. The authority of these institutions rests solely on the fact that they are recognised by those subject to them as being authoritative. Granted, in the absence of power, that authority is fragile, but it can be sustained even when power is contested. Many of the institutions and practices we take for granted in international society are testament to that.

HW: On the first point, yes, I think I did overstate it. A better formulation would be 'it happens only to the extent that the order between the most powerful states is stable and agreed'.

On the second point, I agree things are  not quite as simple as I suggested. But I don't think rules create order in any fundamental  way. Once order is established then rules start to emerge and the rules themselves then help to reinforce the order, and certainly make it work better. But the process only starts once a strong basis of order is already established. And when the order breaks down, the rules fail quickly. Indeed, the sure sign of an order breaking down is when the big powers start to disagree about the rules as a way of signalling their divergent views of their power relations, as we see in the SCS. 

As for your examples (the Oxford English Dictionary, the pope, ASEAN and the UN), don't you think, with one exception, that they support my case rather than yours? The exception is the Dictionary, which does have great authority, but I'm not sure semantics and politics work in ways similar enough to make the analogy carry much weight. In particular, language embodies a strong imperative to conform to rules, because only be conforming to rules can we achieve our objective of communication. Politics is very different.

The other cases - the pope, ASEAN, UN - do not have authority. They sometimes look as if they have authority, but that is only when they free-ride on the power of the major powers. They achieve nothing when they are opposed by major powers (or even middle powers, in the ASEAN context).

SR: You say 'language embodies a strong imperative to conform to rules, because only be conforming to rules can we achieve our objective of communication', but politics is different. Actually, politics is not that different. In fact you almost make the point yourself when you say that, in the case of the Oxford English Dictionary and English usage, ‘only by conforming to rules can we achieve our objective of communication’. It’s true that states can secure their interests by breaking the rules, but they do it sparingly, and some don’t do it at all. For most states, conforming to rules is the most assured way to achieve objectives.

I agree that bodies such as the UN and ASEAN can achieve nothing when opposed by major power, but that’s a ‘when push comes to shove’ scenario, where power is the only thing that matters. At that point, yes, authority is mute. But it rarely gets to that point. You would probably reply that things are always at that point – that beneath the veneer of diplomacy, international relations is solely a struggle for power. That makes the landscape of world politics look a little barren to me. International relations is a political activity in which groups search constantly for compromise to achieve their objectives, and only sometimes resort to force, or the threat of it, to settle things in their favour. 

Lastly, you say the pope, ASEAN and the UN ‘do not have authority’, but by what definition? Mine is that authority is simply something that is granted by those subject to it: if they decide an institution is authoritative, it is. By that definition at least, I don’t see how you can reject the claim that the pope carries authority. Here’s a passage from the political philosopher Michael Oakeshott about the Marylebone Cricket Club which, when he wrote this, was the supreme decision-making body of world cricket:

The Marylebone Cricket Club is a private club which, when it was founded in 1787, had little to distinguish it from many other such clubs. But in the course of about a century it came to be recognized as the custodian of the rules of cricket and the court of record (so to say) whose impramatur is necessary for any change in those rules. This was an acquisition of authority, for the club never had any 'power' to enforce its decisions. This authority was not acquired by succession to an office of authority previously held by some other occupant; office and occupant were coeval. Nor did it come by any act of authorization. It was acquired merely by being acknowledged to have it. The earliest acknowledgement, it seems, was as a court of arbitration in respect of disputes about wagers on cricket matches; but gradually, in steps some of them distinct enough to be recorded, it acquired its present authority over the rules of the game. It retains this authority in the continuous recognition of those concerned that it has it; and this authority will lapse when it ceases to be recognized.

HW: Yes, it’s an interesting example isn’t it? There is something intriguing about the way the MCC came to have authority, but perhaps the struggle was not that intense because it was, after all, just a game, and maybe being in the centre of London gave the MCC some tangible power. But that doesn’t mean power isn’t critical, as we can see if we continue the story (well beyond my knowledge of cricket...). The MCC retained its authority as long as no one with any power challenged it. If the Ainslie Cricket Club (if there is such a thing) had challenged the MCC’s rule-making power, no one would have cared. But if Kerry Packer decided to introduce a new form of cricket, contrary to MCC rules, and backed it with the power to attract advertisers and pay players, then the challenge would succeed (is that what happened, in fact?). So the MCC-led order worked and its rules applied as long as everyone accepted that order. But when the distribution of wealth and power shifted, the old order was challenged. Whether the challenge succeeded depend on whether the challenger had enough power. If they did the order changed, and rule-making authority shifted.

You say 'International relations is a political activity in which groups search constantly for compromise to achieve their objectives, and only sometimes resort to force, or the threat of it, to settle things in their favour.' Well, that depends on the objectives. Some objectives – like fostering trade or dealing with climate change – are best achieved by cooperation. But others – like maximising security – are not (or at least, are not often perceived to be). And what makes the construction of order such a field for raw power unmediated by rules is that (a) maximising one’s place in an evolving order is most often the highest priority and strongest imperative any nation faces (which is why they are willing to fight such bitter wars over it), and (b) competing for a place in an evolving order is inherently zero-sum. If I gain influence or status, someone else loses it, so cooperation isn’t much use.

You say my view 'makes the landscape of world politics look a little barren to me.' Sure, I agree, I don’t like it much either. But this is not a conversation about what we’d like. It’s about what we actually have to deal with. Let’s get back to Julie Bishop: she might like a rules-based order, and so would I. But to base Australia’s future security and prosperity on the assumption that there is one out there which China will or can be compelled or persuaded to accept seems to me imprudent. And in fact I don’t think she thinks that herself. For her, as I wrote in the Financial Review, the rules-based order is just a euphemism for a US-led order. She doesn’t believe in an order governed by rules but in an order governed by our mates. 

SR: Interesting that you should seamlessly move from 'conforming to the rules' to 'cooperation'. That’s not what I had in mind at all. Cooperation implies a shared aim, and you are correct to point out that in the zero-sum world of international security, cooperation towards a shared aim makes little sense. But conforming to rules does not imply cooperation or shared aims. In fact, most of the rules that make the international system work are non-purposive. That is, they don’t require any agreement on the ends to be pursued, just agreement on the authority of the rules. The rules of the road are a useful metaphor – they don’t at all imply agreement on the direction of travel or the destination. Everyone is free to choose their destination as long as they drive on the left, maintain safe speeds, signal when turning etc. In fact, it is conformity to the rules which actually facilitates freedom – without rules of the road, it would be much harder to get to your freely chosen destination. I think states recognise this benefit in the international system too. The rules provide the means by which they can exercise sovereignty.

As for the cricket analogy, perhaps a cricket historian would be unsatisfied with your summary but for our purposes it sums up what happened pretty well. You’re absolutely right that Packer’s economic power transformed the game, as is China’s power transforming the regional and global balance. All I’ve tried to argue up to this point is that to reduce this shift purely to one of power is to miss some important things not only about what the region looks like now but how we might manage it to everyone’s advantage in future. 

That’s why I said your vision was a bit barren – I didn’t mean to express a preference for how I would like the world to be, rather I was trying to say that your picture misses some important features. To try another metaphor, I read a book recently by Yuval Noah Harari called Sapiens: A Brief History of Humankind. He points out how much of human cooperation is based on a common belief in fictions. For instance, when atheists mock religious people for their beliefs, they don’t stop to consider how much their own lives are also dominated by obvious fictions. Take money. We all know that a given banknote or coin, made of cheap paper or copper, is worth a fraction of its face value. Yet for the common good, we all ignore that truth, and instead insist that a $20 banknote, which has perhaps 10 cents worth of paper and ink, is actually worth $20. The global economy would literally collapse if we all stopped believing this.

The rules of international life are a fiction of this kind too, and your realist lens allows you to see through it. But I think it’s a mistake to discard the fiction, because it serves a useful purpose and in fact could mean the difference between peace and war in our region. You’re right that the US and China need to find a way to share power, but for that new order to emerge and remain stable, an agreement on the distribution of power won’t be enough. What’s needed is for that arrangement, and the institutions which govern it, to carry a sense of authority, so that the decisions which emerge from it are seen not solely as abrupt and arbitrary impositions by the strong on the weak (although they may be that), but expressions of a settled regime, a constitution of sorts.  

HW: The 'rule of the road' metaphor is engaging, and I can see the distinction you draw with it between sharing aims and conforming to rules. And it helps to clarify the point I'm getting to about the nature of  power politics and its relationship to rules. If my principal aim in driving is not to get safely to my destination, but to establish that I, rather than any other road user, get to decide what the road rules are (ie. which side of the road we should all drive on), then I have a clear incentive not to stick by the rules as they are laid down by others.

Power politics as it plays out when an international order is in flux is all about asserting one's right to set the rules, and that means defying the established rules just to show that you can. Hence, in the South China Sea, China is showing that it can defy the Law of the Sea, and that America cannot stop it. Only when disagreements about who gets to set the rules are settled and a new order is established can we get back to proper rules-based cooperation. That's why I'm not attracted to the phrase 'rules-based order'. It's the wrong way round. The order is not based on rules, the rules are based on the order.

As for the analogy with currency, I'm not sure that money is based on a 'fiction' so much as a promise: both bank notes and the flickering images on my bank's website retain, I think, the power of a promise to pay the bearer in gold, and that promise is not a fiction.

I think we are not far apart at this point, because I absolutely agree that we need to preserve our confidence in the possibility of a stable order on which rules can the be built, otherwise our future is grim indeed. Moreover, and this gets us right back to Mrs Bishop, we need to remind ourselves that within broad limits, any order is better than none, because it matters less who sets the rules, or in detail what the rules are, than that there is some order rather than continual rivalry over the rule-making power. That is why I think Bishop is wrong to imply, as she she plainly did in Singapore, that the only acceptable order is the old US-led status quo. The point I've been making for a decade now is that we would be better off conceding a bigger leadership (rule-making) role in Asia to China rather than seeing political rivalry destroy the regional order. That's the risk we run today.

Photo courtesy of Flickr user Andrea Allen.

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