Preserving the 'Rules-Based Order'

By Dr Bec Strating, Executive Director, La Trobe Asia
Posted on February 23rd, 2021

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.

The rules governing international order face constant pressure for updating and renewal, even as they are challenged by states that seek to cherry-pick from the rule book. But as Dr. Bec Strating argues, the greater good requires states to avoid appeals to exceptionalism.

The term international ‘rules-based order’ (RBO) has become increasingly potent in international affairs. For instance, the United States Department of State document on ‘A Free and Open Indo-Pacific’ has cast emerging strategic competition as occurring between ‘free and repressive visions of the future international order’. It speaks of states being responsible for upholding the ‘rules and values’ underpinning the Indo-Pacific.

The rhetoric which Australia employs in discussing the RBO is intimately connected with the concept of ‘right over might’: the idea that powerful states should not be able to act with impunity, but must be constrained by rules, norms and institutions that have been created by an international community of states. In the words of former Prime Minister Malcolm Turnbull, Australia seeks a regional political order ‘where transparent rules apply to all – the big fish, the little fish and the shrimps’. Stable and legitimate institutions and predictable patterns of behaviour are certainly beneficial for middle-sized and smaller states that have fewer material advantages than bigger powers.

This said, the issue of what activities Australia and other states can undertake at home and abroad to support their perceptions of the RBO is challenging. Also, to what extent has Australia and other so-called ‘like-minded’ partners of the United States really been concerned about defending the ‘rules’?

The ‘rules-based order’ rhetoric should not be taken purely at face value. The US and its allies and partners tend to use the term as a rhetorical proxy for maintaining a US-led regional order – otherwise known as the ‘liberal’ international order. Such a US agenda ought to be separated from support of a rules-based order, including the institutions and the multilateralism associated with it. To take a second issue, some countries — including Australia — engage in practices that actually undermine the ‘rules-based order’. Our asylum seeker policies, for example, have been internationally criticised for contravening international law.

Great powers, of course, have had a particular capacity to create international rules and institutions that constrain and enable the conduct of states – and then often exempt themselves from those rules where they clash with their own national interests. Rules, of course, are not power neutral: international orders tend to be shaped by power as well as rules.

While often not explicit, China is viewed in Australia and some other countries as the main challenger to the current security and economic order. The ‘RBO’ phrase provides a way of talking about China — and the threat it poses as a revisionist power — without talking directly about China.

Consider the maritime domain. Australia — with the world’s third largest Exclusive Economic Zone — has interests in ensuring that the existing maritime order is maintained. Australia’s narratives, however, are often linked to US-led narratives of ‘freedom of navigation’. As the late Sam Bateman pointed out, across the Asia-Pacific a common understanding of navigational rights is lacking. The US and Australia favour an expansive interpretation of rights to navigation, which are at least partly based on liberal ideals of free trade. Also, Australia views any effort to restrict the capacities of the US Navy to operate in the Indo-Pacific as inimical to our strategic interests. By contrast, some Asian states have put in place laws that seek to restrict military Freedom of Navigation. The phrase ‘Freedom of Navigation’ can be politically sensitive in regions such as Southeast Asia because it can be taken as an argument for pushing more extensive navigational rights. Such an interpretation stands in tension with the security policies that some Southeast Asian coastal states have enacted in their maritime domains. For example, Malaysia views unauthorized military activities in its EEZ as unlawful, which is closer to China’s perspective than that of the US. Here, developing a greater ‘consensus’ around what such rules and principles mean may assist in strengthening maritime order.

Yet, the issue is further complicated, because Australia itself has at times sought to restrict freedom of navigation in its laws and security practices in ways deemed excessive by some international maritime lawyers. Examples include introducing a compulsory pilotage law in the Torres Strait, declaring prohibited anchorage areas in Australia’s economic exclusion zone (EEZ), and introducing mandatory ship reporting in parts of that EEZ.

More recently, Australia has sought to use the RBO discourse to pressure China on the South China Sea, particularly following the ruling of the South China Sea Arbitral Tribunal in 2016 – which invalidated China’s claim to historical rights within the so-called ‘nine-dash line’. Beijing accused Australia of hypocrisy, arguing that Canberra’s treatment of Timor-Leste in disputes over maritime boundaries in the Timor Sea – including allegations of Australian spying during negotiations in 2004 – demonstrated its own problematic relationship with the RBO. The resolution of the Australia-Timor-Leste maritime dispute in 2018 — to Timor’s satisfaction — in part reflected Australia’s vulnerability to these charges. On its part, Australia sought to portray the negotiating of the maritime boundary as an example of the country’s support for the RBO – as a ‘landmark for international law and the rules-based order’, to quote Australia’s Foreign Minister.

While Australian leaders have criticised China’s actions in the South China, and have sought to uphold norms through the Royal Australian Navy’s routinised presence operations, they have drawn the line at new activities — such as Freedom of Navigation Operations — that may provoke retaliation from Beijing. This has led to a questioning of Australia’s commitment to the RBO in the face of China’s rise. Strategic analyst, Hugh White has said that he “sees no evidence that Australians would be willing to fight a major war — let alone a nuclear one — just to preserve the rules‐based order in Asia.”

Although Australia’s foreign policy discourse highlights the RBO, it includes other messaging – causing some incoherence and confusion. In the so-called ‘Morrison doctrine’, the Prime Minister’s rhetorical style appears guided by a ‘sovereignty first’ approach to international relations. He used the phrase ‘negative globalism’ after Australia had been criticised at the United Nations for its poor record on climate change. As opposed to ‘positive’ globalism, ‘negative’ globalism entails criticism of Australia for failure to conform with international responsibilities. The use of the term suggests a preference for ‘picking and choosing’ when the rules suit, and also a general dislike of procedure, institutions, and consensus-building.

The 2019 Strategic Defence Update also raised questions about whether Australia was returning to a nation-first ‘defence of Australia’ posture – emphasising sovereignty and self-reliance. Another example, concerning relations with China, was the legislating of the Foreign Relations Bill in 2020. Emerging in response to fears about a ‘Silent Invasion’ by China, the bill was designed to give the Foreign Minister the right to veto foreign agreements entered into by state governments and universities if she or he viewed them as contravening the ‘national interest’.

Such initiatives have provoked fears about an Australian ‘dangerous populism’ – but the government has also seemed to hedge its bets. Foreign Minister Marise Payne has issued a defence of multilateralism, arguing that ‘at the heart of successful international cooperation is the concept that each country shares, rather than yields, a portion of its sovereign decision-making.’

Middle powers are sometimes described as ‘norm entrepreneurs’ – and Minister Payne has expressed a particular interest in the evolution of the RBO to ‘take account of the interests of rising powers’. Updating rules and devising new ones through international consensus and multilateralism is important, particularly in emerging policy areas. It is a task, however, that requires states avoiding the temptation to develop exceptionalist policies that circumvent this rule-building process.

Dr Bec Strating is Executive Director, La Trobe Asia; and Senior Lecturer, Department of Politics, Media and Philosophy, La Trobe University.