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How Track II organisations can move forward the discussion of the RBO

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This commentary was first published on the Asialink website. It is part of a series of commentaries curated by the Australian Committee of the Council for Security Cooperation in the Asia Pacific, in collaboration with Asialink (University of Melbourne). Anthony Milner, Visiting Professor at AEI, is Co-Chair of the Australian Committee, together with Ric Smith AO.

As countries like China continue to integrate into the world economy, the liberal 'rules-based' order — centred around political governance and the military — needs to remain malleable and flexible, write analysts Zha Daojiong and Dong Ting.

The notion of a rules-based order (RBO) has a natural appeal, as integration into the world is more a reality than a choice, including for countries like China. Integration in the economic realm, most directly through trade and investment, is dictated by world economic geography. Integration in the realm of philosophies for domestic economic and political governance is contentious, in spite of insistence from liberal visions of order that see liberal triumph as both desirable and inevitable. The military security realm is even more complex but order can be assumed to mean peaceful coexistence between countries. All these factors make continuation of international debates and discussions about rules and order worthwhile.

Views about how the world came to be ordered the way it is today are reflective of vantage points in different countries. Questioning from Chinese quarters about prevalent liberal versus illiberal orders stems, at least in part, from incompatibility in institutional memories. China was a non-participant in international institutions from the time of the First World War to 1971, when China joined the United Nations. It is important, therefore, to agree on a common vantage point that resists hierarchical, linear and ahistorical narratives.

As such, frames like ‘Liberal RBO’, ‘Conservative RBO’ or ‘Consensus RBO’ may turn out to be unhelpful - because they are more reflective of an ideology-led pre-supposition about who (which nation) has more right to define ‘order’ and to determine what brings about disorder. The substantive merits of such labels need careful examination to minimize the risk of simply generating political-diplomatic acrimony.

It is useful for discussions about behaviour affecting international order to factor in the symbiotic relationship between foreign and domestic policy. For example, as a good part of both international and domestic policy is underpinned by specific traditions of law, differences between civic law and customary law traditions can lead to competing interpretations about compliance with a rule. In the international realm, when a country’s implementation of an agreed rule tends to fall in line with the civic law tradition, should it be evaluated by applying principles or norms from customary law?

At the risk of oversimplification, under a civic law tradition (which was developed primarily in Europe), disputes between parties with competing interests over an issue are resolved by applying codified laws and policies that are identified to be directly pertinent. How prior cases of an apparently similar nature have been treated is not seen to be relevant – with the issue of similarity itself being considered contentious. By contrast, under a customary law tradition, it is allowed to invoke principles from the past – derived from a jurisdiction that one party deems applicable for dealing with the case on hand. Translated into the international sphere, a country with a civic law tradition is more likely to restrict its obligation to those treaties it has signed and ratified. Whereas a country with a customary law tradition might well insist that traditional practices, including those preceding the particular treaty in question, should have an equally binding effect on behavior. Today, differences between China and other countries’ approach to the South China Sea, in part, arise as China insists on dispute resolution over sovereignty among claimants according to specific agreements established in the past among them, while some user states focus only on the applicability of laws and approaches established in situations beyond the South China Sea context.

All international rules contain elements of procedure and substance, both of which can and often do fall behind changes in realities on the ground. A case in point is peace keeping, a substantive matter in the UN Charter. But what is seen to constitute peace — or how disruption of the peace comes about — is constantly evolving, as must the response from the international community. The same is true of trade and investment treaties. Negotiated agreements are reflective of how existent impediments are understood - but market developments, corporate innovation included, often quickly make such rules outdated. Such changes lead to a search for new principles and venues of dispute resolution.

At the level of peace and major power conflicts, the ideal of all states accepting the boundaries of single set of rules raises even weightier questions: What should be done about the existing rules? Who will decide what matters? Who will write new rules? Who are the guardians of implementation?

Faced with such a daunting but inescapable agenda, it is natural to think of creating momentum by tackling specific issue areas, some of them new. In certain cases — such as data management — the aim might be to create a pioneering set of rules. In areas like commercial shipping, global health and outer space, the objective might be updated and/or expanded rules.

In these specific areas we can again face perspective differences. To take data management: countries such as the United States with monopolistic data corporations define order as allowing unimpeded flows and data storage in legal jurisdictions under their governments. In contrast, countries like China and some in Southeast Asia prefer to have local data storage requirements to assist prosecution of misuse of data. In the example of public health, especially in dealing with a contagious disease, some countries insist on sovereign ownership of virus specimens and their isolates and prosecute unsanctioned access to them by vaccine and medicine developers in another country as biopiracy. But some other countries denounce such notions and actions as mere irresponsibility that ought to be eliminated.

To move the discussion about RBO forward — whether at government-to-government level or in Track 2 forums such as the Council for Security Cooperation in the Asia Pacific (CSCAP) — we need to keep in mind that order is intended to deliver predictability, to minimise the risks that any action or reaction will create dangerous surprise. A strong commitment to transparency and communication is indispensable to these goals; but we can also presume a strong sentiment that the rules set out for any domain ought to have been arrived at collectively, and that there has been a common understanding of what constitutes compliance.

In the international arena, there is a continuing need for flexibility – a willingness to be content with arrangements that deliver a workable degree of order. We should be wary of approaches that insist that ‘one size should fit all’, or which see the RBO deliberations primarily as opportunities to complain about the behaviour of other states.

Zha Daojiong is Professor of International Political Economy, School of International Studies, Institute of South-South Cooperation, Peking University.

Dong Ting is Assistant Professor, Center for International Security and Strategy, Tsinghua University.

Last Updated: 23/02/2021