.
"The problem is not law. The problem is legalism, the ambition that formal rules can supplant power politics and substitute
for wider judgement, that politics itself can be obviated by codes and
institutions."
August 28, 2016, "Sorry, folks, there is no rules-based world order," The National Interest, Patrick Porter
"There isn't one, there won't be, and it's dangerous to pretend there could be."
"If there is one concept, endlessly recalled, that rings through
debate about foreign affairs, it is the “rules-based” international
order. The notion that all are bound by a global set of rules, an
international law above power, is foundational to the UK National Security Strategy [3] and the Australian Defence White Paper [4], and to the United States’ National Security Strategy [5].
The United Nations itself was created to end the scourge of war and
erect a rule of law in its place."...
[Ed. note: "Erect a rule of law?" The UN itself is exempt from laws. No UN personnel can be prosecuted for any crime anywhere in the world].
(continuing): "This was always difficult, especially
so now in an age of greater multipolarity and contestation, where the
claims of sovereignty and the claims of human rights conflict, and
observers worry that the very idea of rules is being eroded.
“Rules-based” has become an incantation, summoned often and
automatically, as though repeating it will make it so.
Order is better than chaos, obviously. A degree of regularity and
process is better than the arbitrariness of power untamed, and it is
better for states to formulate rough principles for the road, even if
the road is unruly. The problem is not law. The problem is legalism, the
ambition that formal rules can supplant power politics and substitute
for wider judgement, that politics itself can be obviated by codes and
institutions.
If faithfully observed, the idea that the world should revolve
strictly around laws and their enforcement would quickly destroy a
country’s ability to have a foreign policy. Five years ago, Amnesty
International demonstrated where such doctrines lead, when it insisted [6]
that the Canadian government arrest former President George W. Bush for
his part in torture while on a visit. Canada, surprisingly, resisted
the temptation, deciding that it had other interests at stake in its
relationship with a neighboring superpower—such as survival. Like other
concepts that attempt to reduce the world to one big thing, legalism is
of limited value. We can’t have a rules-based world order. Indeed, a
fetish for rules is more the problem than the answer.
“Rules-based international order” is a seductive phrase. It sounds
enlightened. It is part of the lingua franca of an internationalist
class of lawyers, officials and commentators. It rolls off the tongue
like other high-minded concepts, from “global governance” to
“international community.” It is tailor made for the graduate lounge,
the petition, the press release or the debating chamber.
The concept is
also a weapon that tempts major powers, its mantle offering their
activities the exalted stature of police action. Tested in the
unforgiving world of actual decisions, it doesn’t live up to its
billing.
The absolute insistence on rules compliance is at the heart of a
doctrine developed by former UN Secretary-General Kofi Annan and
reasserted in the wake of the Iraq War. Annan, another advocate [7] of the rules-based order, insisted [8]
that the United Nations is the “sole source of legitimacy” for the use
of force.
Annan’s doctrines rose to prominence in the days when the main
focus of complaints about illegality was America’s Bush administration,
whose invasion of Iraq without a final, second Security Council
Resolution allegedly tore up a widely respected rule book, turning a
built-up lawful order into a lawless world [9]. For Annan, the lesson of Iraq [10]
was the need to work together through the UN.
Unfortunately for that
argument, most of the violence that occurred in post-Saddam Iraq took
place after the United Nations Security Council passed Resolution 1546
in June 2004, unanimously authorizing the continuing presence of a
multinational force. Iraqi insurgents had already showed what they
thought of the “sole source of legitimacy” blowing up the UN
headquarters in Baghdad. Is it possible that UN authority is not quite
so all-important as legalists think it is?
Nevertheless, the idea has become contagious that military action can
only be legitimate with the assent of the UN, an organization that once
had Colonel Qaddafi’s Libya as chair of its Human Rights Commission,
and whose Security Council includes regimes responsible for atrocities
in Tiananmen Square and Tibet, or Chechnya and Crimea. Applied
consistently, this doctrine would have blocked interventions that were
justified morally and strategically, such as Vietnam’s intervention to
end the Cambodian genocide, or Tanzania’s intervention against Idi Amin
in Uganda. As the socialist intellectual Norm Geras suggested [11]
in his challenge to legalism, given the human weight of what is at
stake, international law must take its chances “with the other pressing
moral considerations that govern life and death.” If that applies to
human rights, why not also national security or, indeed, international
order itself?
Syria today raises the issue. Britain’s former secretary for international development Andrew Mitchell recently denounced [12]
the Russian-Syrian bombardment of Aleppo. Demanding international
action to end the slaughter, he insisted that only the UN could
“symbolise the authority of the international community.” Mitchell did
not acknowledge that the Security Council has Russia as a permanent
member, an active belligerent wielding veto power. The obvious problem
is that one arbitrator of the rules is also a bloodstained aggressor
that is unwilling to intervene against itself. In effect, Mitchell is
asserting strict adherence to the very institutional obstacles that
prevent the intervention he claims is morally urgent. If only there were
no tradeoffs between the cause of international institutions’ authority
and righteous military action. If only we could have it both ways.
China’s aggressive expansion into the South China Sea has restaged
the problem of global rules. Observers, understandably enough, object to
China’s exorbitant “nine-dash line” territorial claims, its incursions
into disputed waters, islands and shoals, and its repudiation [13]
of the Permanent Court of Arbitration’s recent unanimous ruling against
it. Again, critics complain that China’s misbehavior undermines a
rule-bound order, demanding U.S.-led resistance to defend the rule of
law. As when President Vladimir Putin bit off the Crimea and fell on the
Ukraine, those who write so ironically about international “rules”
suggest that geopolitical thuggery is a thing of the past, a
nineteenth-century regression in a law-bound twenty-first century.
This ahistorical assumption, of a recent past of rule observance and
consensus, explains some of the unwarranted surprise of critics, some of
whom expected China to take up America’s invitation to submit to the
rules of the Pax Americana.
A rising China’s attempt to dominate its
neighborhood, bully its neighbors and reject a tribunal’s verdict may
offend. It should not shock. It is, historically, unexceptional [14]. Neither does China show any sign of capitulating in the face of the verdict. It has responded with threats [15] and escalation [16],
and its own population if anything is more belligerent on the issue
than its government. If a major power with the pressure of a multitude
of nationalists will not submit to the “rules-based” order that
apparently prevails, that order must have been fragile, or fictitious,
to begin with.
It would be one thing if the “rules-based” cliché were harmless. It is not harmless. It suffers from three defects.
Firstly, its claims about “how things are” is untrue, historically and today. Contrary to those nostalgic [17]
for a rule-based liberal order that the United States bound itself to
after World War II, there was never a golden era of rule adherence to
which we can return. As Stephen Walt observed [18],
historically “we mostly made up the rules, and chucked them or ignored
them when they got in our way. . . there are rules, but we don't define
the system in this way. For starters, defining the system as
‘rule-based’ doesn’t make much sense if the leading state(s) can ignore
the rules whenever they want to.” The United States was not an umpire
above the fray. Umpires don’t overthrow governments, assassinate rulers
or blockade countries.
Every major power, past and present, including every permanent member of the Security Council, has on occasion [19]
significantly violated international law, or rejected the rulings of
international courts, or even denied their authority. Jacques Chirac’s
France, like Gerhard Schroeder’s Germany, opposed the invasion of Iraq
on the grounds of opposing “unilateralism” and upholding the Security
Council’s authority. Yet France itself flouted the same rule,
participating in NATO’s unauthorized and illegal bombing of Serbia in
1999 to rescue Kosovo Albanians from genocide. As an American hawk observed [20],
“if there ever was an international order of the kind they describe,
then Europe undermined it in 1999, too.” In 1985, France sank the
Greenpeace ship Rainbow Warrior, agreeing to arbitration but
refusing to submit to the International Court of Justice. The United
States has not even ratified the international Law of the Sea that it
urges China to observe. In the 1980s, when Nicaragua successfully sued
America before the International Court of Justice over the mining of its
harbors, Washington refused to pay reparations and refused to recognise
the authority of the court. America’s UN ambassador Jeane Kirkpatrick’s
rationalization was inflammatory, and true: the ICJ, she claimed, is a
“semi-legal” body that “nations sometimes accept and sometimes don’t.”
Secondly, the “rules-based” ideal cannot be realized in future,
because of the tragic nature of international life. There is no
transcendental impartial authority that can enforce rules in a
disinterested and consistent way. There may be global governance, but
there is no global government, and when states feel enough pressure they
will rely on themselves if they can.
Rules themselves, like norms, can conflict. We have already noted a
case in point: the collision between the authority of the Security
Council and international humanitarian law against the targeting of
civilians. Consider a provocative suggestion: sometimes states are right to
act illegally. Our own Western states violate international law from
time to time, and with justification. Though our preference is for
international authorization, we have compelling interests that at times
will be threatened, so compelling that we won’t hold them hostage to the
cause of international consensus. Indeed, we may believe, with good
conscience, that the welfare of world order itself obliges the
occasional breaking of rules.
The same President Obama who invokes the “rules-based order” carries
out extrajudicial assassinations of Islamists, and not always with the
prior consent of host countries or the Security Council, thus infringing
both sovereignty and due process. In principle, he is right to do so.
American citizens are not entitled to decamp to remote countries and,
unmolested, urge their compatriots to slaughter other Americans. Armed
Islamists from other countries, likewise, are not entitled to prepare
aggression against American civilians without disruption. The states
where they find sanctuary may be either too weak, or too passive, to
apprehend them. In such circumstances, it is reasonable for America to
treat armed adversaries as armed adversaries, without relying on others’
permission. “Rules-based,” however, is a stretch [21].
The issue came into sharp focus for Britain’s former prime minister, David Cameron, who had
urged China [22]
to buy in to the “rules-based world.” Confronted by the outrage of
Syria’s [alleged] use of chemical weapons against civilians, Cameron in the autumn
of 2013 discovered powerful reasons to set formal rules aside. Making
the case for punitive airstrikes against the regime, to punish and deter
future WMD atrocities, Cameron insisted [23],
“if we’re saying there can only be a response if the UN Security
Council votes positively, we are in fact contracting out our foreign
policy, our morality, to the potential of a Russian veto. Now I think
that is a very misguided approach.”
For a government that talks [22] so [24] often [25]
about the rule of law, all of a sudden morality and rules were
distinct, and Britain could reject rules for the sake of other valued
things. Neither is this apparent doctrine an isolated [26] case [27].
Unless we are claiming an Anglo-American privilege, if one major power
can selectively refuse to submit to the Security Council or courts, why
can’t others? Major states will invoke rules, and at their discretion,
will break them. Theirs is a great-power privilege. This is the world we
live in.
Thirdly, attempting to bring about a world of consistent rules,
enforced by an international authority, will harm the West’s ability to
navigate its way ahead. It is not the case, as some argue [28],
that better rules or reformed institutions will adequately address the
problem. The problem is more intractable.
The world is a tragic place,
where not all good things go together, and cannot offer dilemma-free
clarity and consistency. Even doing good or principled things may
require accommodation with oppressive regimes. Recall the celebrated
case of Chile’s dictator Augusto Pinochet, who was put under house
arrest in London in 1999. Prime Minister Margaret Thatcher was widely
condemned for her unyielding support for Pinochet. As her critics fail
to note, when Thatcher’s Britain fought to recapture the Falkland
Islands from Argentina in 1982, it relied on Chile’s covert assistance [29],
in particular early warnings of air attacks on British naval forces,
warnings provided by long-range radar. On the one day the radar were
switched off for maintenance, two British transports were sunk. Pinochet
played a vital role in Britain’s victory, and took grave risks to do
so. Were we to take legalists’ advice [30], and commit to arresting and trying the leaders of oppressive regimes, how confident could we be of their help in future?
At the dawn of the postwar era, Hans Morgenthau identified [31]
the legalist vision, that conceived of the world in absolute terms of
peace, law and crime. This would make “compromise, the virtue of the old
diplomacy, the treason of the new.” As Morgenthau’s critique implied,
“rules” and “order” are distinct and conflicting concepts, just as
“illegal” and “immoral” are concepts wrongly conflated. “Rules” suggest
strictness, nonnegotiability and clarity, and above all a supreme umpire [32]
empowered to enforce the rules. Order, though, depends on compromise,
negotiation and trade-offs, in the absence of a referee. Many of these
require hard value judgements, in a world so messy that rules themselves
can collide.
My own experience is that, off the record, government officials agree
that their master concept is a charade. Yet, they reason, it is still
worth pursuing. Is it, though, wise to pursue the impossible? There is
no value pretending the world is anything other than it manifestly is.
Instead of wishfully invoking a fictitious order that even our own
states are likely to reject at critical junctures, our decisionmakers
should consider how to negotiate a rougher world, the compromises they
are willing to make, the violations they will tolerate, the principles
they will need to stretch. If there is a pathway to peace, it is not the
competitive invocation of rules, or the lawyerizing of foreign policy.
Neither can solve the inherent dilemmas of power and order. The
alternative need not be “mere anarchy.” If there is a workable world
order to be forged, it will be made primarily by diplomats who go beyond
reading international documents. It will rely on compromise,
adjustment, mutual concessions and a continually negotiated universe,
backed by deterrence and material strength. That may not be an
attractive world. It is at least a realistic one, in which prudent
diplomacy has sometimes [33] succeeded [34]. It is also the only world we can have. It’s sad that it needs repeating, but we can’t have it all."
"Patrick Porter is the academic director of the Strategy and Security Institute at the University of Exeter."
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Source URL (retrieved on May 23, 2018): http://nationalinterest.org/blog/the-skeptics/sorry-folks-there-no-rules-based-world-order-17497?page=3
Links:
[1] http://nationalinterest.org/blog/the-skeptics/sorry-folks-there-no-rules-based-world-order-17497
[2] http://nationalinterest.org/profile/pat-porter
[3] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/478933/52309_Cm_9161_NSS_SD_Review_web_only.pdf
[4] http://www.defence.gov.au/whitepaper/Docs/2016-Defence-White-Paper.pdf
[5] https://www.whitehouse.gov/sites/default/files/docs/2015_national_security_strategy.pdf
[6] http://www.amnestyusa.org/research/reports/canada-urged-to-arrest-and-prosecute-george-w-bush
[7] http://www.kofiannanfoundation.org/speeches/towards-a-more-harmonious-world-order-kofi-annan-at-peking-university/
[8] http://www.un.org/press/en/1999/19990518.SGSM6997.html
[9] https://www.amazon.co.uk/Lawless-World-Making-Breaking-Global/dp/0141017996
[10] http://www.nytimes.com/2004/09/16/international/annan-says-iraq-war-was-illegal.html?_r=0
[11] http://normblog.typepad.com/normblog/2005/02/a_flawed_system.html
[12] http://www.dailymail.co.uk/wires/pa/article-3719615/Slaughter-Aleppo-forever-symbol-international-shame.html
[13] https://www.theguardian.com/world/2016/jul/12/philippines-wins-south-china-sea-case-against-china
[14] http://thediplomat.com/2016/07/of-course-china-like-all-great-powers-will-ignore-an-international-legal-verdict/
[15]
http://www.news.com.au/world/reports-chinas-ambassador-warns-japan-of-consequences-for-south-china-sea-dispute/news-story/1c8950ef7897dc2145819145a99dfe31
[16] http://www.globalresearch.ca/escalation-naval-deployments-and-geopolitical-conflict-in-the-south-china-sea/5541122
[17] http://press.princeton.edu/titles/9410.html
[18] http://foreignpolicy.com/2011/09/03/what-i-told-my-apsa-panel/
[19] http://www.japantimes.co.jp/opinion/2016/07/25/commentary/world-commentary/mirage-rules-based-order/
[20] https://www.amazon.co.uk/Paradise-Power-America-Europe-World/dp/1400034183
[21]
http://www.slate.com/articles/news_and_politics/view_from_chicago/2012/10/obama_s_drone_war_is_probably_illegal_will_it_stop_.html
[22] https://www.theguardian.com/world/2016/may/25/david-cameron-china-ruling-south-china-sea-the-hague-philippines
[23] http://www.liverpoolecho.co.uk/news/uk-world-news/david-cameron-dont-leave-syria-5848966
[24] http://www.publications.parliament.uk/pa/cm201012/cmselect/cmfaff/665/66506.htm
[25] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/62482/strategic-defence-security-review.pdf
[26] https://www.theguardian.com/world/2015/mar/19/un-ruling-raises-hope-of-return-for-exiled-chagos-islanders
[27] http://nationalinterest.org/blog/the-buzz/us-naval-base-under-threatand-its-britains-fault-12473
[28] https://www.chathamhouse.org/london-conference-2015/background-papers/challenges-to-rules-based-international-order
[29] http://www.nationalreview.com/corner/295165/chiles-valuable-role-falklands-war-john-osullivan
[30] http://www.independent.co.uk/news/pinochet-ruling-a-landmark-in-british-legal-history-1187312.html
[31] https://books.google.co.uk/books/about/In_Defense_of_the_National_Interest.html?id=I5kqAAAAYAAJ
[32] http://nationalinterest.org/blog/the-skeptics/can-america-be-the-worlds-umpire-17438
[33] https://www.jstor.org/stable/2164776?seq=1#page_scan_tab_contents
[34] https://history.state.gov/milestones/1969-1976/rapprochement-china
[35] https://commons.wikimedia.org/wiki/File:UN_General_Assembly_hall.jpg
[36] http://nationalinterest.org/tag/united-nations
[37] http://nationalinterest.org/tag/strategy
[38] http://nationalinterest.org/tag/united-states
[39] http://nationalinterest.org/tag/foreign-policy
[40] http://nationalinterest.org/tag/rule-law
[41] http://nationalinterest.org/topic/global-governance
[42] http://nationalinterest.org/region/americas
http://nationalinterest.org/blog/the-skeptics/sorry-folks-there-no-rules-based-world-order-17497?page=show
Comment: The American people are grateful for any country not on board with a so-called "U.S.-led liberal international order." Such an "order" puts American lives in danger. For example, after Obama's effectively bombing Iran via Stuxnet cyber attacks, every country in the world would be justified in bombing the US in retaliation: “Achieving, with computer code, what until then could be accomplished only by bombing a country or sending in agents to plant explosives….“This is the first attack of a major nature in which a cyber attack was used to effect physical destruction,” said former CIA chief Michael V. Hayden. “No
country’s infrastructure is more dependent on computer systems, and
thus more vulnerable to attack, than that of the United States. It is only a matter of time, most
experts believe, before it becomes the target of the same kind of
weapon that the Americans have used, secretly, against Iran.”” 6/1/2012, “Obama Order Sped Up Wave of Cyberattacks Against Iran,“ NY Times, David E. Sanger (“This article is adapted from “Confront and Conceal: Obama’s Secret Wars and Surprising Use of American Power,” [by David E. Sanger of the New York Times] to be published by Crown on Tuesday.”)
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