“International law contains a whole host of checks and balances built into the system in a way that rules do not….Rules could indeed be made up by whoever has the power to do so, and they could be changed as frequently as the most powerful wishes.”
“If the core ideal…is no longer going to be international law, then there will be another, and the rules-based international order is a current contender.”…
Chatham House: “US-led Rules based international order” long ago proved non-functional. US bombings, 2003 invasion of Iraq, US drone programs, and 2008 world financial collapse proved “rules” didn’t apply to US and global fat cats. US could’ve proposed updating obviously antiquated WWII era “rules” but has shown no interest in doing so. US isn’t constrained by “laws,” or even “rules.” Since US makes the “rules” and is in charge of enforcing them, it can murder and starve people all it wants.
7/7/2018, “In Defense of the International Law-Based Order,” Australian Institute of International Affairs, by Professor Shirley Scott
“Contrary to popular belief, a rules-based international order is not in continuity with the past, but a replacement for an international law-based order. The decay of the ideal of politically-neutral international law is a dangerous shift.
Most references to a rules-based international order appear to see it as in simple opposition to a power-based international order. The rhetorical emphasis on a rules-based order is generally presented as a continuity from the post-WWII international order.
From this perspective, the United States, having `won’ World War Two, went on to lead in the establishment of a suite of key multilateral treaties. Most fundamental of course was the Charter of the United Nations, but this was followed by others of importance, including the Treaty on the Non-Proliferation of Nuclear Weapons, the international human rights covenants and the Geneva Conventions. More recently there has been the United Nations Convention on the Law of the Sea and the Treaty Establishing the World Trade Organization (WTO).
A rules-based international order encompasses not only these `hard law’ instruments but also soft law instruments and shared norms. RBIO thus becomes a particularly difficult ideal to challenge.
Except, of course, that the term “rules-based international order” is relatively recent. Prior to this the West did not emphasise the term per se, but put its collective weight behind respect for international law. If one believes that exact words matter, then a rules-based international order is not a continuity from the past, but a replacement for an international law-based order.
This is a dangerous rhetorical shift.
International law was integral to the functioning of the US-led international order and a key dimension of US power. International law represented a normative ideal to which all in the community in question agree and the ideal was then used as both a medium of interaction and as a bargaining pivot in diplomacy and international negotiations.
As an ideal it consisted of several inter-related principles: that international law is politically neutral; that states should comply with international law; that international law exists ahead of policy decisions and that it can solve any issues between states as a path to peace.
The political obligation for states in the US-led order to uphold this ideal meant that references to international law assumed them true, that states could be `called out’ where their actions detracted from this image and that the political obligation could be skillfully manipulated to convince other states to align their behaviour with values and policy preferences embedded into international law. Importantly, the obligation was shared by all states and so the less powerful were also, at times, able to draw on this political obligation to at least hold their own.
During the Cuban Missile Crisis, US diplomacy drew on the ideal to influence Soviet choices, despite the relevant law being arguably more in Soviet than American favour.
Certainly when it comes to questions of security, the ideal of international law is nowhere near as strong today as it was in 1962.
The turning point was likely the 2003 invasion of Iraq, where the blatant undermining of the ideal by the US put the falseness of the image of international law as politically neutral in neon signs.
Interestingly, during the intense exchanges between the US and North Korea last year [2017] it was North Korea that made more references to international law, when the US could easily have made diplomatic mileage out of the obligation not to threaten to use force. Instead, Trump attracted widespread criticism by making his own threats.
According to ideology theory, there is always a core set of principles integral to a social or political system. So if the core ideal in the order is no longer going to be international law, then there will be another, and the rules-based international order is a current contender.
The dangers of having the rules-based order accepted as a replacement for the ideal of international law are at least threefold:
Perhaps most basically is the problem that the rhetorical shift does not actually tackle head-on the primary issue at the heart of the decline. Perceived US hypocrisy, as symbolised by the 2003 invasion of Iraq (but also other uses of force also of dubious legality, including that during the Kosovo crisis), caused what now seems to have been irreparable harm in how others viewed the ideal of international law. Putin has not let the West forget with his parodying of rhetorical references to international law.
In fact, it may be that the shift from ILBO to RBIO makes the situation worse. Not only was the assumption of the obligation to comply with international law weakened by the West through its actions, but similarly affected was the component principle emphasising the universality of international law. International law was, in 2003, something that the West imposed on others. The shift to RBIO invites an acceleration of this questioning, by prompting the question: `whose rules’?
This is unfair to international law because while it may have been US-dominated, it did leave room for others. China’s experience with international law [as opposed to "US-led Rules Based International Order] is a case in point: China has a seat on the UN Security Council, it is part of one of the inner circle of states in the NPT and is an equal player in the WTO.
However, most serious is the concern that RBIO is too broad a term compared to ILBO. The replacement of ILBO with RBIO as the ideology of the international system places the West in far greater danger than if the West were to stick with international law.
International law contains a whole host of checks and balances built into the system in a way that rules do not. If all that countries agree to as a normative ideal is a set of rules, those rules could indeed be made up by whoever has the power to do so, and they could be changed as frequently as the most powerful wishes. RBIO could be used offensively as a diplomatic pivot against the West to hasten its relative decline.”
“Shirley Scott is Head of the School of Humanities and Social Sciences at UNSW Canberra.
This article is based on a presentation at the EU-Australia Leadership Forum Sectoral Policy Workshop on a Rules-Based International Order, which took in Brussels on 26-7 April [2018]. The AIIA is part of the international consortium delivering this project.”
………………………………
Added: World War II era “US-led Rules based international order” long ago proved non-functional. Various US bombings, 2003 invasion of Iraq, US drone programs, and 2008 world financial collapse proved “rules” didn’t apply to US and global fat cats. US could’ve proposed updating obviously antiquated WWII era “rules” but has shown no interest in doing so. US isn’t constrained by pesky “laws” or even “rules.” US makes the “rules” and is in charge of enforcing them.
The UK monarchy, "special friend" of US elites, is patron of Chatham House.
2015, “Challenges to the Rules-Based International Order,“ Chatham House, The Royal Institute of International Affairs, London Conference, Session One
“Economic and political upheavals are emboldening challengers to the rules-based international system, and to the [so-called] liberal Western values it embodies. To stay relevant, the system must address three major flaws.” [Legitimacy, equity, and an excess of self-confidence]
Added: World War II era “US-led Rules based international order” long ago proved non-functional. Various US bombings, 2003 invasion of Iraq, US drone programs, and 2008 world financial collapse proved “rules” didn’t apply to US and global fat cats. US could’ve proposed updating obviously antiquated WWII era “rules” but has shown no interest in doing so. US isn’t constrained by pesky “laws” or even “rules.” US makes the “rules” and is in charge of enforcing them.
The UK monarchy, "special friend" of US elites, is patron of Chatham House.
2015, “Challenges to the Rules-Based International Order,“ Chatham House, The Royal Institute of International Affairs, London Conference, Session One
“Economic and political upheavals are emboldening challengers to the rules-based international system, and to the [so-called] liberal Western values it embodies. To stay relevant, the system must address three major flaws.” [Legitimacy, equity, and an excess of self-confidence]
“The international order established by the victorious allies
after the Second World War has been remarkably enduring. The framework
of liberal political and economic rules, embodied in a network of
international organizations and regulations, and shaped and
enforced by the most powerful nations, both fixed the problems that had
caused the war and proved resilient enough to guide the world into an
entirely new era.
But given its antique origins, it is not surprising that this order now seems increasingly under pressure. Challenges are coming from rising or revanchist states; from unhappy and distrustful electorates; from rapid and widespread technological change; and indeed from the economic and fiscal turmoil generated by the liberal international economic order itself.
In general these challenges seem serious rather than catastrophic. There is little coherence or common interest among the challengers, except for discontent with aspects of the current order, and therefore little coordination. There is no sign of any integrated international opposition movement which might unite the discontented and advocate an alternative system, leading to the sort of ideological struggle that marked the last century. And, despite continuing conflicts around the world [and excluding constant US invasions, bombings, and starvations], war remains an exceptional and disreputable activity rather than, as in much of the past, a proper and attractive tool of international dispute resolution.
These are small mercies. The danger to the current order comes not from a single deathblow from a rival system, but from its gradual weakening in the face of widespread dissatisfaction among those it needs to serve. If the system is to survive, its weaknesses must be recognized and resolved, and it must adapt better and faster to the changing international situation.
Three interconnected problems must be resolved. The first is the problem of legitimacy. For a system based on rules to have effect, these rules must be visibly observed by their principal and most powerful advocates. In this respect, the decision by the George W. Bush administration to invade Iraq in 2003 under a contested UN authorization continues to cast a long shadow over America’s claim to be the principal defender of a rules-based international system. Questioning the legitimacy of US leadership has not eased under Barack Obama, despite his more multilateral approach to problem-solving and reticence in using overt military force. The failure to close the Guantanamo Bay detention facility; the Senate report on the use of torture under the previous administration; the continued use of presidential authority under ‘war on terrorism’ directives to carry out lethal drone strikes in the Middle East and Pakistan; and the exposure by Edward Snowden of the way US intelligence services used the dominance of US technology companies over the internet to carry out espionage – all have left the United States vulnerable to the accusation that it is as selective as any country about when it does and does not abide by the international norms and rules that it expects of others….
The second problem, which is tied to the question of legitimacy, is one of equity, in that a rules-based order must work to the advantage of the majority and not a minority. This has always been a problem. Ever since the institution of the current international system, any assessment of its fairness and effectiveness was often a matter of perspective. Democracy and respect for human rights were established in Western Europe, but not in the East. Decolonization reduced formal Western influence in Africa and Asia, but this was often replaced by the informal constraints of debt and foreign economic domination of key market sectors and finance. Freer movement of trade, investment and people stimulated economic growth in the developed and developing worlds, but also threatened cherished notions of culture, identity and religion.
For much of the past 70 years such problems, though grave, did not threaten the system.…This changed with the global financial crisis of 2008–09. The impact of the crisis was both economic and ideological, spreading dissent among those affected, and exposing the structural weaknesses and unfairness of much of the established international economic system.
This was particularly apparent in the European Union, perhaps the most rules-based and rules-observant of all branches of the current international order. Discontent in many member states was triggered by the economic impact of the financial crisis, but it has expanded to include dissatisfaction with the EU’s policies on issues such as migration, the Union’s elite-led political culture, and the balance of political and economic power within it. In response, the EU is working its way through an uncomfortable, messy and difficult restructuring programme; for this to be successful it will have to convince member states and their citizens that it can serve them better than in the past, and that it is more open and responsive to their concerns.
The third problem is one of [excess] self-confidence. The longevity of the current international system may have led to the assumption that it was in some way the natural order of things, requiring only occasional repair and defence against particular challengers. This has bred complacency.
Many aspects of the order are in fact revolutionary, disruptive and disorderly. They provoke violent and understandable resistance from those who see themselves as champions of their own established order, based on different rules. Global free trade regimes, UN Security Council-sanctioned interventionism, human rights activism on such issues as gay rights, and anti-censorship campaigns are elements of a transformative agenda being actively pursued by Western states and societies. What many in the West see as an attempt to spread the benefits of modernity is perceived elsewhere as an aggressive bid for dominance by Western economic and political interests and by the West’s materialism and secularism.
But given its antique origins, it is not surprising that this order now seems increasingly under pressure. Challenges are coming from rising or revanchist states; from unhappy and distrustful electorates; from rapid and widespread technological change; and indeed from the economic and fiscal turmoil generated by the liberal international economic order itself.
In general these challenges seem serious rather than catastrophic. There is little coherence or common interest among the challengers, except for discontent with aspects of the current order, and therefore little coordination. There is no sign of any integrated international opposition movement which might unite the discontented and advocate an alternative system, leading to the sort of ideological struggle that marked the last century. And, despite continuing conflicts around the world [and excluding constant US invasions, bombings, and starvations], war remains an exceptional and disreputable activity rather than, as in much of the past, a proper and attractive tool of international dispute resolution.
These are small mercies. The danger to the current order comes not from a single deathblow from a rival system, but from its gradual weakening in the face of widespread dissatisfaction among those it needs to serve. If the system is to survive, its weaknesses must be recognized and resolved, and it must adapt better and faster to the changing international situation.
Three interconnected problems must be resolved. The first is the problem of legitimacy. For a system based on rules to have effect, these rules must be visibly observed by their principal and most powerful advocates. In this respect, the decision by the George W. Bush administration to invade Iraq in 2003 under a contested UN authorization continues to cast a long shadow over America’s claim to be the principal defender of a rules-based international system. Questioning the legitimacy of US leadership has not eased under Barack Obama, despite his more multilateral approach to problem-solving and reticence in using overt military force. The failure to close the Guantanamo Bay detention facility; the Senate report on the use of torture under the previous administration; the continued use of presidential authority under ‘war on terrorism’ directives to carry out lethal drone strikes in the Middle East and Pakistan; and the exposure by Edward Snowden of the way US intelligence services used the dominance of US technology companies over the internet to carry out espionage – all have left the United States vulnerable to the accusation that it is as selective as any country about when it does and does not abide by the international norms and rules that it expects of others….
The second problem, which is tied to the question of legitimacy, is one of equity, in that a rules-based order must work to the advantage of the majority and not a minority. This has always been a problem. Ever since the institution of the current international system, any assessment of its fairness and effectiveness was often a matter of perspective. Democracy and respect for human rights were established in Western Europe, but not in the East. Decolonization reduced formal Western influence in Africa and Asia, but this was often replaced by the informal constraints of debt and foreign economic domination of key market sectors and finance. Freer movement of trade, investment and people stimulated economic growth in the developed and developing worlds, but also threatened cherished notions of culture, identity and religion.
For much of the past 70 years such problems, though grave, did not threaten the system.…This changed with the global financial crisis of 2008–09. The impact of the crisis was both economic and ideological, spreading dissent among those affected, and exposing the structural weaknesses and unfairness of much of the established international economic system.
This was particularly apparent in the European Union, perhaps the most rules-based and rules-observant of all branches of the current international order. Discontent in many member states was triggered by the economic impact of the financial crisis, but it has expanded to include dissatisfaction with the EU’s policies on issues such as migration, the Union’s elite-led political culture, and the balance of political and economic power within it. In response, the EU is working its way through an uncomfortable, messy and difficult restructuring programme; for this to be successful it will have to convince member states and their citizens that it can serve them better than in the past, and that it is more open and responsive to their concerns.
The third problem is one of [excess] self-confidence. The longevity of the current international system may have led to the assumption that it was in some way the natural order of things, requiring only occasional repair and defence against particular challengers. This has bred complacency.
Many aspects of the order are in fact revolutionary, disruptive and disorderly. They provoke violent and understandable resistance from those who see themselves as champions of their own established order, based on different rules. Global free trade regimes, UN Security Council-sanctioned interventionism, human rights activism on such issues as gay rights, and anti-censorship campaigns are elements of a transformative agenda being actively pursued by Western states and societies. What many in the West see as an attempt to spread the benefits of modernity is perceived elsewhere as an aggressive bid for dominance by Western economic and political interests and by the West’s materialism and secularism.
To its opponents, the West’s refusal to accept that it has such an agenda makes its liberal policies appear all the more sinister. For many regimes, the Western agenda is truly an existential threat.
These fears do not provide a case for the West changing its approach, withdrawing or accepting cultural relativism. However, the West must recognize how radical its agenda can be, realize the depth of the opposition it may provoke, and sometimes tailor its policies accordingly….
These three problems – of legitimacy, equity and [excess] self-confidence – are serious, to be sure. But they do not imply that there is something fundamentally wrong with a rules-based system.
These three problems – of legitimacy, equity and [excess] self-confidence – are serious, to be sure. But they do not imply that there is something fundamentally wrong with a rules-based system.
Rather they suggest that the rules need to be revised to ensure that they remain relevant, and that they need to be applied as consistently and extensively as possible. In this, form follows function. Any reform of the rules-based order must first decide what the order aims to accomplish, and only then consider what structure is needed to achieve this. Just as the current order was constructed with the clear aim of avoiding a repeat of the nationalism, totalitarianism and conflict of the 1930s and 1940s, a modernization effort should reflect a reforming agenda intended to tackle the problems of the 2000s and 2010s.
Who decides this agenda, and what it should contain, remain open questions.
The West has the opportunity to take the initiative, to decide now what sort of revised rules it would like to establish, and how far it is willing to take into account the interests of its rivals or alternatively to fight for its own priorities.
If the leading Western powers do not take this opportunity – and at the moment there is little sign that they will – there are now plenty of others who might.”
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