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A Rules-Based Order... With Some Caveats

27 Nov 2017
By Professor James Cotton FAIIA
Could a more principled approach lead to a more stable rules based order?

While Australia’s Foreign Policy White Paper makes all the right noises regarding a rules-based order between states, there are some important ambiguities left in the detail.

A foreign policy white paper is bound to focus on change, risk and opportunity. As these factors cannot be quantified precisely, whatever strategies such a document might prescribe can only be indicative in nature. The mix of alliance, bilateral, regional and global measures advocated, all commendable in themselves, will never escape dispute as to emphasis or priority. Nevertheless, there are ambiguities and silences in the current document that deserve close attention. In particular, in its focus upon new or augmented strategies to respond to as well as to shape the environment of the next 10 years and beyond, the reliance of the document upon global systems of rules leaves some room for doubt.

The term ‘rules’—generally in the expression ‘rules-based order’—occurs more than 80 times in the text. The partial synonym, ‘international law’, is used much less frequently, but together these expressions occur on average almost once per page. It is suggested that the rules in question—generally but not always pertaining to trade—are both pervasive but also, frequently, in dispute or under the pressure of eroding influences. To take a major example, the text discusses at length the importance of the “vital” World Trade Organization (WTO) as setting the standard for rules-based trading behaviour, stating that “Australia will continue to press all members to comply with WTO rules and obligations.”

How sure is the foundation provided by the WTO if Australia’s present prosperity is to be maintained? In a development not mentioned in the text, the greatest threat faced by the WTO is posed by the decision of the US to seek its demise by atrophy, neither nominating personnel to its appellate body nor supporting the nominations of others. Unlike the International Criminal Court—which is mentioned just once in the text and which the United States refuses to join—the WTO was largely an American invention and has served as a key component of an American-centred trading regime for many decades. The United States is now extending to international bodies the same rules that are being applied domestically (as could be seen in the sorry story of the nomination in 2016 of Merrick Garland for membership of the US Supreme Court). If WTO appellate body members find against perceived American interests they apparently will not be maintained in office.

If the white paper is correct in its emphasis upon rules, then American policy is deliberately and profoundly hostile to a key component of those rules. It is a puzzle as to why this conclusion is not explicitly drawn.

To be sure, the white paper promotes the view that the degree of support from the United States, which is vital for the maintenance of the liberal order, is in the American interest. However, when the text states the view that: “It is strongly in Australia’s interests… to support US global leadership”, what is not clear is whether it is the leadership that the United States actually exerts, in whatever form it might be manifest, or whether it is that leadership which is consistent with the rules-based order, the protection and promotion of which is at the heart of this White Paper. While such an ambiguity is politically unremarkable—elsewhere the further strengthening of the US alliance is the “core” priority in dealing with the uncertainties of the future—the result analytically is lamentably imprecise. The question that needs to be asked, and that the white paper avoids, is, what should Australia’s priorities be if the US walks away from the essential rules. Several answers, of course, are possible, but what needs to be stated is whether, in such an outcome, observance of rules should still prevail over power or vice versa.

This point bears on another term that also occurs on most of the pages of the text, ‘open’ and ‘openness’, notably of trading and investment arrangements. The document both represents Australia as ‘open’ in this sense, and also as a nation that both advocates and derives advantages from such openness. Openness is dependent upon rules, since a lowering of trading, investment and information barriers would not comprise a rational strategy absent appropriate and agreed regulation. If we face the prospect that the world of the next 10 years will be one in which rules count for less, will such openness remain so advantageous? To take one aspect of this question, the text refers to the emergence of cyber threats as one manifestation of the current trend towards the flouting of rules by national actors. At the very least, this prospect deserves direct discussion.

If the drift in American policy escapes censure, China’s actions in the South China Sea are directly and explicitly condemned. Given one of the key the assumptions of the White Paper—the fact that the “major powers are ignoring or undermining international law”—this uneven treatment of the two main actors does not appear merited. It is arguable that the WTO is at least a class higher in its importance to Australia by comparison with the disputed reefs and shoals of the South China Sea.

If China is criticised, and the United States is subject only to some oblique comments, the explicit approval of the current trend of Japanese policy is highly noteworthy. Australia apparently supports Japan’s “reforms to its defence and strategic policies”. The reforms in question are left unspecified. Rarely does one country endorse the policies of another in quite so open-ended a fashion. The reform that most readers would envisage would no doubt be the revision of Japan’s pacifist constitution, which cannot possibly occur without causing grave offence in Beijing and also in Seoul. Given what is said elsewhere in the text about the importance of Australia’s relations with China and the Republic of Korea, at the very least this endorsement is highly inconsistent.

Though there is a definite need, as this document asserts, for the widest possible discussion of Australia’s foreign policy priorities, reactions to it will most likely be framed in relation to the specific policy commitments that accompanies its launch. Here readers are presented with a veritable puzzle. The first—and most specific—of six policy undertakings announced will be to host an ASEAN-Australia Special Summit in 2018.

Yet the architecture of the white paper does not explain why ASEAN should be given such immediate prominence. The white paper does not mention Brunei or Laos (except as members of ASEAN), mentions Cambodia just once, and its remarks on the Philippines and Myanmar are limited to their places in the regional terrorist problem. The bilateral relationships with Indonesia and also with Singapore (the latter, especially its defence aspect) do receive attention, but neither are a subset of their locations in ASEAN. Moreover, ASEAN as an organisation hardly features in the text, except as it is embodied in the ASEAN trade arrangements with Australia and New Zealand (which came into existence in 2002 and later took the form of AANZFTA). In short, the reasons for a special summit with the group are not to be sought in the arguments of the white paper. Indeed, it is difficult to imagine—if it presumed that Australia’s highest priority is the protection and promotion of rules—what advance in a rules-based order will be achieved by the presence in Sydney of President Duterte, Prime Minister Hun Sen and some of their other colleagues.

Unfortunately, the ASEAN moment has well and truly passed, a topic which deserves more consideration. The growth of illiberal tendencies in many of the governments of the ASEAN states, and the failure of the group effectively to address issues, from the haze and the degrading of the Mekong basin to the Rohingya crisis, have undermined the credibility of its proclaimed norms. Even on the South China Sea, the ASEAN states cannot agree on their respective claims. This manifest lack of coherence has provided an opportunity for China to gain influence to the extent that within the next decade ASEAN may even become a vehicle for the advancement of elements of a Chinese agenda. In all, seeking closer cooperation with ASEAN is now of doubtful diplomatic utility for Australia; closer relations with Indonesia, which are indeed strongly in the national interest, are better pursued in some of the ways set out elsewhere in the white paper.

There are many sensible and appropriately cautious recommendations in this document. Notwithstanding, whether Australia can rely upon the rules of the regional and international systems as much as is assumed is doubtful, and quite what policies should be pursued if they continue to erode are not sufficiently specified.

Professor James Cotton is a fellow of the Australian Institute of International Affairs. He is an emeritus professor at the University of New South Wales and former head of politics at UNSW at the Australian Defence Force Academy.

This article is published under a Creative Commons Licence and may be republished with attribution.