From a rules based order to a state of nature.

datePosted on 14:11, December 15th, 2018 by Pablo

One of the most disappointing aspects of the last decade as been the erosion of a rules-based majoritarian consensus in the conduct of international relations. Slowly but surely the painstakingly crafted set of institutions, norms, laws and rules by and through which foreign affairs were conducted during and after the Cold War were subverted, disregarded and outright ignored. The trend towards anarchy in international relations has been accelerated by the emergence of authoritarian great powers, China and Russia in particular, and by the unwillingness or inability of the architects of the rules-based order to aggressively defend the principles upon which it stood in the face of transgressions from these powers and others. Once Donald Trump took presidential office in the US and began to renege on US commitments to international agreements and institutions, the descent into anarchy accelerated.

Take a few examples. The Chinese island building project in the South Island Sea is a clear violation of international maritime law and has been ruled unlawful by the International Court of Arbitration. The Chinese have ignored protests and the ruling itself while lying that the islands would not be militarised. Because no one pushed back strongly against it at a time when they could have, the PRC not only maintained that the islands provided them legal cover to their claim to the entire South China Sea basin as China’s territorial sea under the Nine Dash Line or First Island Chain policy (as it does with the East China Sea), but built permanent military installations on them in order to reinforce the point. From there it began to challenge maritime freedom of navigation within 20 nautical miles of the artificial islands in a de facto assertion of the “possession is 2/3rds of the law” doctrine. Now Chinese dominance of the shipping lanes connecting Southeast Asia to the world, while periodically contested by the US and its allies, is on its way to becoming a fait accompli. Any move to reverse the new status quo will result in bloodshed.

The Russians went further. In 2014 they militarily invaded Eastern Ukraine and annexed Crimea by force when a pro-Moscow kleptocrat was removed after Western-backed demonstrations. They have built a bridge connecting Crimea to the Russian mainland and subsequently asserted territorial rights over the Kerch Strait connecting the Azov and Black Seas (which was previously considered to be an international waterway). In Syria they have turned the tide of the civil war in favour of the Assad regime using attacks on civilian centres as well as rebel held territories and by casting a blind eye on, if not assisting with, the use of chemical weapons by the Assad regime against civilian targets. Since no Russian will be charged with crimes against humanity or war crimes over these atrocities, their impunity has been rewarded.

Lesser despots have gotten the message. The Saudi Crown Prince ordered the murder of a Saudi expat journalist in the Saudi Arabian consulate in Istanbul. Although his involvement was discovered by Turkish and US intelligence (and perhaps others), concerns about Middle Eastern geopolitics and oil make it unlikely that the Kingdom will face serious repercussions, especially if they offer up some lesser sacrificial lambs in the face of international outcry (as they appear to be doing).

Most recently, the US decided to unilaterally withdraw from the nuclear control agreement signed by Iran with the P5+1 group (US, UK, China, France, Russia and Germany). It declared that it would impose additional sanctions on third party individuals and firms that did business with Iran after the US withdrew from the agreement. This month it requested the arrest and extradition of a Huawei executive–a daughter of the company founder as well as a very high ranking Chinese Communist Party official–on suspicion of fraud involving the creation of a shell company doing business with Iran. Under extant treaty obligations the Canadians agreed to the extradition request and detained the executive, who is now out on bail but confined to Vancouver while the extradition request is processed.

Not surprisingly the Chinese reacted poorly to this train of events. Within days two Canadians resident in the PRC found themselves behind bars on “national security grounds.” Although the tit for tat exposes the lie that Huawei is an independent private firm unconnected to the Communist Party (otherwise, why the official outrage and resort to hostage taking if it was just a private commercial matter?) and demonstrates that the Chinese will play rough when they feel that their interests are being contravened (something that may inform the New Zealand government’s approach to their bilateral relationship), it also shows what happens when one country unilaterally decides to impose its views against the opposition of others. Actions may have unintended consequences for more than the principles involved, and in this instance Canada is the caught between a rock and hard place just because it complied with a legal request from its southern neighbour.

There is plenty more. The US-backed Saudi and UAE campaign against Iran-backed Houthi rebels in Yemen has seen war crimes and atrocities committed on an industrial scale. The Chinese have a million Uighurs locked up in “re-education” camps designed to strip them of their Muslim beliefs. The Russians carry out poison assassination plot abroad. The US detains and separates refuge-seeking children from their migrant parents and places them in detention centres hundreds of miles from where their parents are imprisoned or deported. Australia indefinitely holds asylum seekers on a remote island without access to proper legal representation. Indigenous lands are seized, occupied and expropriated throughout Latin America without compensation or redress. And then, of course, there is Daesh, which even if on the retreat in the Levant continues to represent a transnational evil with no regard for basic human rights, much less international norms.

The sclerosis of international organisations also contributes to the erosion of norm abidance. The dysfunction of the UN is well known, but everything from anti-poaching regimes to international fishery conventions and the much vaunted but piecemeal actioned climate change mitigation agreements are violated in the main. Regional organisations meet regularly, rooms full of delegates fill with hot air as speeches are given while sideline pontificators prattle, statements are issued and commitments to more dialogue are made. But very little gets done in a substantive way because in the end it is nation-states that must “walk the walk” after all that talk. US withdrawal from the climate change agreements while it renews fossil fuel exploration under the Trump administration is a case in point.

The larger point is two fold: the international rules based order is in perhaps terminal decline. The decline is attributable in the first instance to the belief that it would receive wide-spread voluntary adherence regardless of national interest or specifics of the policy issue. This was compounded by a lack of enforcement capability when it came to norm violations. Countries were either unwilling or incapable of committing to enforce the rules-based order in the measure that they had rhetorically championed, so it quickly became clear that violators, if strong enough or if the issue was not universal in nature, could literally get away with mass murder. And so they did.

That is where the decline of democracy and rise of despotism has had a negative impact on international norms. Since the very notion of democracy came into question in countries with long histories of it, and since autocrats of various stripes used authoritarian measures to impose their rule under the guise of imposing efficiency in governance, then it was only natural that such tendencies would flow into the realm of foreign affairs. Why get bogged down in international gabfests with “lesser” states when an easier, immediate and more favourable solution is at hand?: imposition by fact or force in the face of a lack of international norm enforcement capability.

Once again, might makes right in international affairs. Once again, the strong dominate the weak. Once again, power is truth and there is no speaking contrary to it. We are sliding into international anarchy

Policy-makers in Wellington can speak to the need for multinational norms and the importance of being an honest broker in a contentious world. But those claims hark to an international system that was stable and in which rules and norms were adhered to in the main rather than the exception. That is no longer true for the current international moment, where absent a rules-based Leviathan to enforce the agreed upon rules of the game, the global commons has reverted to a state of nature.

In such uncharted waters NZ policy-makers need to not only read their charts but also understand the interplay between geopolitical tides and winds. Because no matter how much faith they have in their current abilities and connections to larger states and international organisations, the fate of small nations in turbulent global seas rests as much on a deep understanding of history and long-term trends as it does on the benefits and consequences of policy decisions made over the last two decades. 

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2 Responses to “From a rules based order to a state of nature.”

  1. AVR on December 16th, 2018 at 17:09

    2/3rds of the law? The usual phrase is ‘Possession is nine tenths of the law.’

    There are some changes for the worse in the way international trade is moving away from rules, but a lot of this has been happening for decades. Seizure of indigenous land, poisoning by Russian agents, even breaking pieces off other nations – Putin issued a warning when Kosovo was broken off Serbia IIRC. How much of this is really a change?

  2. Robert.M on January 13th, 2019 at 13:00

    9/10th of the law, I think was the line at Canterbury University in 2001.I did Land Law that year and received a D 40-50./In my view I passed, but was failed for only attending s dozen lectures and general in acceptability to an ultra conservative and reactionary broarder legal profession. Neverless Ms Tolley was the sort of conservative I appreciate, is contempt for Lord Denning.When I first heard that Denning was a great judge in 1975, I was filled with suspicion, given the sorts who expressed the view. While at the time Denning was seen at the time of sanatising the Profumo affair and narrowing the fallout, a great judge would just have told the electorate to grow up and that all the evidence suggested there was no case against Profumo and he had nothing to answer.RM

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