Rules-Based Order: what does the region think?

By Tony Milner, International Director, Asialink,
and Ric Smith, Co-Chair, Australian Committee of CSCAP

In this conclusion to a series of articles on the rules based order, the co-chairs of the Australian committee of CSCAP Tony Milner and Ric Smith assess the contributions of regional commentators and argue Australia must listen to, and heed, differences of opinion in Asia if any reform of the rules is to succeed.

Prime Minister Morrison wishes us to live in a region “guided by international rules and norms”. This is at least part of his answer to the enormous strategic uncertainty, and potential peril, Australia faces in its immediate region – a set of conditions Morrison argues we have not seen since the 1930s.

With an anxious eye on tensions in the South China Sea in particular, the Australian leadership refers increasingly to the need to enhance and preserve the ‘Rules-Based Order’ (RBO) – an endeavour in which Australian diplomacy could play a key role.

Far from merely affirming an order taken for granted in the post-War American era, Australia in its 2017 Foreign Policy White Paper acknowledged specifically that the global order is not static. The institutions and rules that support global cooperation “can and do evolve”, it was said, and “must accommodate the greater weight of emerging powers”.

How could Australia contribute to revising the rules that mediate and moderate the behaviour of states? We must have a clear view of our national interests but also take account of perspectives from non-Western countries. Because Western thinking has dominated most discussion in Australia, the non-government Council for Security Cooperation in the Asia Pacific (CSCAP) — in cooperation with Asialink, University of Melbourne — sought views from a range of Asian region commentators.

Despite the geopolitical transition underway, we should note first that much of the international rules system continues to hold. We live in a world of nation states claiming certain widely acknowledged sovereign rights. In practical matters, for instance, there is little contest about aviation or banking regulations – or even about the anti-whaling convention or conservation of Antarctica. The environmental protection agenda is increasingly seen as basic to human welfare, even in developing countries. As for the liberal economic order, despite serious debate on detail there is still a shared aspiration toward a rules-based and equitable trade system – partly because it has benefited non-Western as well as Western countries.

This said, there are important variations among regional views.

The first message from the regional essays is positive: there is wide support for some type of international rules system. As our Chinese commentator argues, “integration into the world is more a reality than a choice, including for countries like China”. Especially in the security area, he says, there is a need to “deliver predictability, to minimise the risks that any action or reaction will create dangerous surprise”. A Singapore commentary adds that the “contemporary world cannot function in healthy, peaceful, and secure development without give-and-take, and without trust in a rules-based co-existence”.

Soldiers, Tiananmen Square
One commentator argued, “integration into the world is more a reality than a choice, including for countries like China”. Image credit: Meeh, Shutterstock.

The second message is that the demand for a revised rules order is in part a result of a genuine clash of perspectives. For instance, a common understanding of navigational rights is lacking. As an Australian commentator points out, the US favours “an expansive interpretation of rights to navigation, which are at least partly based on liberal ideals of free trade.” In Southeast Asia, such “extensive navigational rights” can cause concern in archipelagic states and others with extensive coastlines, which see a threat to the “security policies they have enacted for their maritime domains”. Another perspective difference, highlighted in a Chinese commentary, concerns “specific traditions of law”. Under civic law (developed primarily in Europe) disputes are resolved in terms of “codified laws and policies that are identified to be directly pertinent”. By contrast, according to the Chinese contributor, in a customary law tradition influential in China, “traditional practices, including those preceding the particular treaty in question” can be viewed as having “an equally binding effect on behaviour”.  In the South China Sea, China —according to this essay — insists the sovereignty disputes need to take into account “specific agreements established in the past” – and not only the “applicability of laws and approaches established in situations beyond the South China Sea context”. By contrast, other parties prefer a black-letter reading of the UN Law of the Sea Convention.

In some cases, the RBO is distorted by a clash of emphasis. China and Singapore value economic rather than the political-security aspects. China has even expressed interest “at the highest level in the CPTPP [Comprehensive and Progressive Agreement for Trans-Pacific Partnership], an agreement which the United States originally supported”. By contrast, Narendra Modi’s India is “ambivalent about the trade-economic aspects – as its 2020 refusal to join the RCEP illustrates”. Another emphasis difference concerns whether the RBO ought to refer primarily to behaviour between states – or also to “internal arrangements” of individual states. In a survey carried out in 2019 by the Japan Committee of CSCAP, a number of countries (including China) focused on behaviour between states. The Japan response explained that although Japan in the past had been mainly concerned with “freedom of navigation and overflight”, the view has changed: “Japan thinks that now is the time for the Asia-Pacific to talk about domestic issues such as democratization, human rights, good governance, transparency, accountability and so forth.”

As to ASEAN, as reported to a conference co-hosted by CSCAP, its member states tend to be unhappy with adversarial approaches – uncomfortable, for instance, with coercive diplomacy and a resort to military force, and also wary of joining military alliances. They focus on trust building and inclusivity – and “security arrangements that bind friends and foes alike”. They are determined not to “discriminate against any political system” and are thus wary of a “Quad of democracies”. Southeast Asian countries also seem to view regional institutions in a strongly emotive way – prioritising the building of a sense of organic community, rather than the solving of practical policy issues. All these perspectives — many at odds with Australian thinking — would need to be navigated in revising the international rules system.

The third message in the commentaries is that there is suspicion in Asia about the origins and purposes of the current RBO. Although certain aspects of the order date back to 17th-century Treaty of Westphalia (which set the framework for the modern states system) and earlier, post-World War 2 rule making is constantly highlighted. A Vietnamese commentator says the RBO was “guided by liberal and internationalist beliefs shared among political elites in Western countries” – and designed to “counter assumed challenges from socialist countries” and “nationalist states elsewhere”, as well as “isolationist tendencies in the US”. In the view of another commentator, the RBO invokes the “US-led Western liberal order”, with such “core ideas” as “democracy, respect for human rights, free and open trade, responsible government, sovereign equality of nations, rule of law, and universal applicability of international law.” What is now necessary is to involve “non-Western states into the revisioning process” to “increase the RBO’s legitimacy”.

The fourth message is that not only Western but all major powers provoke distrust. A rising power such as China is seen as having a right to engage in rule-making – especially as its leaders believe China was excluded in the past. The Vietnam essay, however, says the two biggest powers, “in accelerating their competition, undermine the global order by flouting existing rules – withdrawing from or abusing multilateral institutions, paralysing international cooperation, and intensifying divides within the international system”. For this reason, several commentaries suggest smaller and middle powers have a special role.

These countries, as a Philippines essay points out, have a “distinct interest in becoming ‘stabilisers’ and ‘legitimisers’ of world order.” Not having “the advantage of superior force” they “favour negotiation and cooperation”. Smaller powers in Asia also have a track record, having been “at the core of the multi-layered web of regional governance rules and institutions.” Australia, of course, also has experience of rule-making. For instance, in establishing the United Nations in the 1940s, Australian officials were mediators in advocating the aspirations of smaller nations against the major powers and have contributed since to such other areas as the Chemical Weapons Convention, the WTO and the Antarctic Treaty. Could Australia today mediate between the major Western powers and a range of Asian aspirations?

The fifth area of advice in the commentaries concerns how a process of rules revision might proceed.  Australia has clearly signalled its willingness to consider change. But any state wishing to play a part in the process would need to focus on trust-building and multilateral cooperation. Such states should avoid seeming to operate on behalf of a single major power – and must be careful to ‘walk the talk’, acting themselves in line with the rules they advocate. It is especially important to recognise the frustrations about process — as well as rules content — operating in the Asian region, even when these frustrations seem ill-founded.

Some rules differences would be essentially technical – and ought to be easy to reconcile. Others are rooted in deep cultural or civilisational contrasts. Anxiety about liberal individualism, for instance, is sometimes evident in countries which prioritize a communitarian social vision – and this can lead to confrontation in defining human rights principles.

In dealing with the reality of ruling elites, one way through this — some commentators suggest — might be to separate out the ‘liberal’ elements from the RBO and concentrate only on state-to-state relations. Such a narrowed-down RBO — in the words of one contributor — might focus largely on “sovereignty and territorial integrity, observance of international law and freedom of navigation and overflight, and peaceful resolution of disputes without resorting to use or threat of force.” The problem, so a Japanese commentator explains, is that in the “age of globalisation, in which nations become increasingly interdependent — and money, people, goods, and information moved increasingly across national borders — the differences in the domestic institutions and rules of each country [have become] a greater political point of contention.” Also, the rules situation becomes increasingly complex in dealing with such new areas as cyber space and outer space – here (perhaps more than most areas) deliberation must take into account “the concern of domestic players and stakeholders as well as small-and-medium-sized states.”

The internal arrangements of states, that is to say, cannot be ignored – and this adds to the challenge of RBO revision. On the other hand, the most encouraging advice in these commentaries concerns the possibility of identifying and building on successful rules codes. Terrorism reporting, for instance, is now mandatory – and the United Nations Security Council Counter-Terrorism Committee (CTC) can be a model for implementing the reporting of a disease outbreak and insuring access for the World Health Organisation (WHO). The failure by a state to report a disease outbreak or to allow fact-finding missions — so a commentary from American University in Washington argues — could be “treated as being equivalent to aggression.” Also, global cooperation in the fight against drug syndicates is a model of “relative success, largely because there is a consensus on the outcomes and fairness in achieving outcomes”.

One final piece of advice concerns the importance of flexibility – the “willingness to be content with arrangements that deliver a workable degree of order”. RBO deliberations should not become opportunities merely “to complain about the behaviour of other states”. Over the last decade or so, the world can be seen as “returning to a more historically normal period of a divided and contested international order”.

With these comments in mind, the point should be made that in Asian regionalism the deliberation itself matters. Some Australian analysts ridicule what they call ‘talk-shop’ regionalism. But patient dialogue can build a sense of community and a type of procedural order – quite apart from the rules achievements gained in the final signing-off of a legalistic code. In this culture of negotiation, the symbolism of listening and compromise can matter as much as the acts themselves. In a regional RBO dialogue, Australia will inevitably wish to defend aspects of the current rules system, pointing out that they have gained wide acceptance and brought tangible benefits well beyond the Western sphere. But as our Foreign Minister has indicated, we would also listen to suggestions as to how the RBO might evolve.

Given the Australian government’s stated desire to play a role in “shaping” our “strategic environment”, it is better to be inside not outside the ‘conversation of the region’ – and the topic of the Rules-Based Order provides an opportunity of high value.

Anthony Milner is Co-Chair, Australian Committee of CSCAP and International Director, Asialink; former Dean of Asian Studies, ANU.

Ric Smith is Co-Chair, Australian Committee of CSCAP; former Secretary of the Department of Defence, Ambassador to China and Ambassador to Indonesia.

Banner image: Crossing and intersection, Hong Kong. Credit: cittadinodelmondo, Shutterstock.

Read more from the Perspectives on the Rules-Based Order series on Asialink Highlights.

A version of this article was first published in The Australian Financial Review on May 3, 2021.