As long as the politics of hatred and revenge; the politics of outrage; the politics of geopolitical competition and revanchism prevail, the rules-based order will remain a misnomer.
by Ruwantissa Abeyratne
Patterns of cooperation that have benefited our prosperity and security for decades are now under increasing – and I would suggest almost irreversible – strain. ~ Former Australian Prime Minister Scott Morrison
No one knows for certain what the “rules-based order” is exactly. However, it is arguably the most bandied about term in these catastrophic times. In the broadest sense the term has its genesis in the field of international relations – as compared with international law – where the latter has a precise definition in Article 38 of the Statute of the International Court of Justice which categorizes the sources of international law which courts should apply as international conventions (treaties), whether general or particular, establishing rules expressly recognized by the contesting states; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by “civilized nations” (whatever that means); and judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
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| [ Image: Flickr / UNclimatechange] |
At best, one could call this ambivalent and heuristic term a set of global, structured relationships followed tendentiously and seemingly based on political liberalism, economic liberalism, and liberal internationalism since the late 1940s. These relationships have been built within functional parameters of international institutions and their decisions, resolutions and norms which are calculated to regulate the behaviors and interactions of sovereign states and other actors in the global system. Undoubtably, all this gobbledygook makes the term “rules-based order” an amorphous work in progress and makes it open for interpretation by any State or institution. It makes the exact meaning of this concept a work in progress.
Ben Scott writing an article titled But What Does “Rules-Based Order” Mean?in The Interpreter offers some insight as to what the Australian definition of a rules-based order might mean : “ But what does “rules-based order” mean? The unsatisfying answer is that the concept is used in official discourse to mean many different things, and they’re not always complementary. Although the term “rules-based international order” was only coined after the Cold War, Canberra typically dates it to the aftermath of the Second World War and the institutions and norms – centred on the UN – that were established then. It is often credited with having delivered 70 years of peace and security.
Other recurring propositions are that the rules-based order has both constrained the use of power and depends on US power; that it could shape China’s rise and be shaped by China; and that it must be saved and must change”.
In this context, it is interesting to note that the term rules-based order has come in remarks of some world leaders and statesmen. Gideon Rachman, Chief Foreign Affairs Commentator of the Financial Times, in his podcast The Rachman Review quotes United States Secretary of State Anthony Blinken as having said : “We must defend and reform the rules-based international order, the system of laws, agreements, principles and institutions that the world came together to build after two world wars to manage relations between states, to prevent conflict, to uphold the rights of all people. Its founding documents include the UN Charter and the Universal Declaration of Human Rights, which enshrine concepts like self-determination, sovereignty, the peaceful settlement of disputes. These are not western constructs. They are reflections of the world’s shared aspirations”.
In the same podcast, John Ikenberry – a distinguished professor at Princeton University – is reported to have opined: “ I think the rules-based order has a history that predates the US and even predates 1945 and the great order-building efforts after world war two. But if you were to try to identify what open rule-based order is, it’s a set of commitments by states to operate according to principles, rules and institutions that provide governance that is not simply dictated by who is most powerful. So it’s a set of environmental conditions for doing business — contracts, multilateral institutions — and it comes in many layers. At the deepest level it’s really the system of sovereignty. It’s the belief that the world has a kind of foundation built around self-determined states that respect each other”.
My Take
I would like to take some definitive extracts from the above two statements, the first being that a rules based international order is a “system of laws, agreements, principles and institutions that the world came together to build after two world wars to manage relations between states, to prevent conflict, to uphold the rights of all people”. The second is “ … it’s a set of commitments by states to operate according to principles, rules and institutions that provide governance that is not simply dictated by who is most powerful”.
These definitions simply do not mesh with what has happened in the world over the past 20 years. If the preeminent purpose of a rules-based order is incontrovertibly to “uphold the rights of all people” through “governance that is not simply dictated by who is most powerful” it simply is not working. If it is a system of sovereignty (not only of a territorial State but also of a people) that sovereignty has been breached in several areas of the world particularly since the watershed events of 9/11 in 2021 but even before where might and power, fire and fury have prevailed.
As long as the politics of hatred and revenge; the politics of outrage; the politics of geopolitical competition and revanchism prevail, the rules-based order will remain a misnomer.
For a rules based international order to prevail, we must follow what the rules say about the laws of war. The core legal principle of the law of war (in the protection of the rights of all peoples) is enshrined in a few fundamental moral truths in the Geneva Conventions. While upholding the essential principles of international law, a nation is justified in defending itself and its populace. However, this same principle does not warrant a nation’s defense of the occupation of another territory. The Geneva Conventions for the Protection of War Victims, primarily outlined in Additional Protocol I to the Geneva Conventions ratified in 1977, is relevant to international armed conflicts, delineating the principles governing defensive retaliation by any state. It also outlines the extent to which such defense should be executed, ensuring the protection of civilians.
The first pivotal principle, often referred to as the principle of proportionality, is central to armed conflicts. It dictates that when targeting a legitimate military objective, the expected harm to civilians or civilian assets should not disproportionately exceed the direct military advantage sought. Essentially, the principle of proportionality calls for a thoughtful balance between achieving military objectives and mitigating harm to civilians and their property. It places an obligation on those involved in armed conflicts to consider the potential consequences of their actions and avoid strategies causing excessive harm to non-combatants and civilian infrastructure.
This principle of proportionality is a foundational element of the regulations governing armed conflict, as outlined in the Geneva Conventions and their Additional Protocols. Its purpose is to protect the rights and well-being of civilians not actively participating in hostilities, upholding the humanitarian goals of international humanitarian law (IHL).
Another crucial principle is Precaution, closely aligned with proportionality. It mandates that conflicting parties adopt all practicable measures to minimize harm to civilians and civilian assets before and during military actions. These precautions encompass avoiding unselective strikes, deliberate target selection, advance notification, and ensuring medical care for the injured.
We can only theorize but the people of this world who are suffering under a so called rules-based order cannot survive on double standards and rhetoric.
Dr. Abeyratne teaches aerospace law at McGill University. Among the numerous books he has published are Air Navigation Law (2012) and Aviation Safety Law and Regulation (to be published in 2023). He is a former Senior Legal Counsel at the International Civil Aviation Organization.
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