In the 75 years since the end of World War Two, the Asia Pacific has grown accustomed to an international rules-based order built on the exercise of US power.
That state of affairs seems to have been taken for granted, especially in the years after the Sino-American détente when strategic competition largely disappeared from the region and economic opportunity abounded.
Concern over the existence of a order started to change around the turn of the last decade as the region came to terms with the rising power of China. Prior to then, the term ‘rules-based order’ rarely appeared in public discourse.
Global rules certainly accumulated – the number of international treaties is now estimated to be more than 158,000, spawning 125 judicial organisations – but they were largely the concern of officials working in government departments on the arcane technicalities of international cooperation.
Elsewhere, the infrequency with which the term ‘rules-based order’ appeared in mainstream publications suggests a degree of ambivalence. A search back over the record of articles on the media search engine Factiva, shows that in the decade after 1990 there were just a dozen articles in which the words “rules-based order” were mentioned – only two of them in the context of international relations.
In the decade after 2000, the number of mentions of rules-based order recorded in the global English-language press rose to 89 (65 of them after 2005). Then, between 2010 and the end of 2019 the count suddenly shot up to 9,520 articles in which the terms were mentioned. If the search is refined further to include the terms rules-based order and China, the reader will find 6,343 articles.
As a rough guide, allowing for a bias to Western publications, it suggests there wasn’t a great deal of public concern about the existence or operations of the rules-based order until it started to be challenged by China. It is not so much the rules-based order that seems to matter, but whose rules and what order they serve.
Now, with US power in relative decline, one of the key questions we are obliged to ask is whether US power, in the form that it has manifested in the Asia-Pacific since the war, is indispensable to either the maintenance of that order or to the very existence of a rules based order.
In looking to the future in the Asia Pacific, the continued exercise of US power will affect the type of rules-based order, how it is formulated, and the willingness of regional players to comply with it. But a rules-based order would persist even in the absence of preponderant US power.
Those arguments can be addressed in two parts.
First, the order that we have experienced, and watch evolve, since the war will be best preserved, at least in its current form, by ensuring the US is fully committed to the region in concert with key partners like Japan, South Korea, Australia, perhaps India, and to a greater or lesser degree, several of the ASEAN states.
This is because that order was an American-led invention. The extent of the US diplomatic, economic and military presence in the region has provided some surety of respect for the laws, norms and institutions that make up that order. Power and the nature of the order are deeply entwined.
China has made it clear it wants the order to change to reflect its interests as it assumes the mantle as the region’s leading power. Xi Jinping has described Beijing’s goal as to “foster a new type of international relations” and build a “shared future for mankind” by encouraging the “evolution of the global governance system”, all while putting “national (security) interests first”. It is as much the ambiguity as the ambition of these statements that lie behind the sudden surge in interest in the rules-based order in the past decade.
Xi Jinping addresses the UN General Assembly. Photo credit: Shutterstock, Drop of Light.
If the region wants to either preserve the existing rules and institutions or maximise its influence on how they change, keeping the USA locked in looks like a sensible bet against uncertainty. American power, in the form of defensive deterrence, combined with active engagement with China, would arguably offer the best means of ensuring the preservation of the rules-based order as we see it today and help it evolve in line with changing power realities and changing preferences and interests.
At the moment, as Frederick Kempe of the Atlantic Council has observed, US policy is one of neither engagement nor containment – it looks distinctly ineffective on both counts.
But, secondly, if the US significantly withdrew from the region in a policy of Western hemisphere defence, would the Asia Pacific descend into a lawless self-help system? That proposition is hard to believe.
For a start, as the Australian National University’s Greg Raymond has pointed out, it is unlikely China wants to totally overthrow the current rules-based order. Indeed, China has strong incentives to retain much of it, albeit with adjustments to suit its interests. A rules-based order to which other countries in the region adhere is certainly a cheaper and easier way to manage external relations.
Still, in assessing Beijing’s attitude to a rules-based order, it is instructive to consider its attitude to the rule of law in general, as applied both domestically and internationally. The culture and values that shape domestic law are likely to have a significant bearing on how China views the role of international law.
The Chinese Communist Party (CCP) made the status of law a key plank of its 18th Congress in 2012. However, what the party referred to as fazhi can be variously translated as “rule of law” or “rule by law”, the second being the preferred definition of many scholars.
By the time of the 19th party Congress in 2017, that implication had become clearer. Xi advocated a “Chinese socialist rule of law theory” that envisages the CCP exercising “leadership at every point in the process and over every dimension of law-based governance”. His view of a centrally commanded “socialist rule of law with Chinese characteristics” suggests the purpose of law is to control the undesirable behaviour of the ruled, not as a check on the excesses of their rulers.
If the CCP sets itself above domestic courts, why would it recognise the superior authority of an international tribunal? The development of domestic law as a check on government, and the willingness of Beijing to accept the independence of its own courts, is likely to have a significant bearing on whether it earns trust in the region as a law-abiding international citizen.
There is a wide spectrum of opinion over the extent of China’s likely revisionism and its willingness to allow itself to be constrained by rules, even those it has a hand in drawing up. Being a party to an instrument doesn’t guarantee a country will honour it.
The negotiations to finalise a Code of Conduct in the South China Sea between China and ASEAN have been painfully slow – now entering their 18th year. Even if the Code is agreed later this year, as promised, China’s track record raises doubts about compliance.
Unlike the USA, China has ratified the UN Convention on the Law of the Sea (UNCLOS), but it makes little difference to its conduct in the South China Sea. Even as Beijing tries to recruit allies in the region and splinter US alliances, it started 2020 by having a spat with Jakarta over fisheries around Natuna Island.
Natuna Island. Image credit: Shutterstock.
Bradley Thayer and John Friend in their recent book ‘How China Sees the World: Han-Centrism and the Balance of Power’ say China seeks the “triumph of authoritarianism in international politics” in a world made in its own image. Liberal democracy would be marginalised, along with its values of rule of law, free speech, direct elections, transparency and accountability. They see by 2049 a China that will neither integrate nor negotiate but expect others to follow the new China Order.
Secretary of State Mike Pompeo shares this pessimistic outlook. Last April, he told NATO foreign ministers that “China wants to be the dominant economic and military power of the world, spreading its authoritarian vision for society and its corrupt practices worldwide”.
US Secretary of State Mike Pompeo. Image credit: Shutterstock, Alexandros Michailidis.
It is noteworthy that the American public isn’t entirely sold on the hawkish narrative. In a poll conducted by the Chicago Council on Global Affairs early last year, more than two-thirds of respondents said the USA should pursue a policy of friendly cooperation with China. Republicans were generally more negative than Democrats. It could well pave the way for a very different policy from a future Democrat administration to the one we see now.
Given the divergence of opinion about China’s future conduct, and the fact power and rules-setting represent different sides of the same coin, the precautionary approach for the region if it wants to preserve the current rules-based order is to try to encourage the US to remain committed to this part of the world. It should play a role in supporting the USA strike a balance in relations with China between deterrence and active engagement. Brendan Taylor, professor of strategic studies at the ANU, has described what the framework of such a deterrent might look like.
If a credible deterrent were in place in concert with other powers, there would have to be adjustments to accommodate China’s interests and by negotiation its views on the global order and rules. The region must be vigilant about what China does, but not fall into the self-fulfilling trap of portraying Xi Jinping as inherently antagonistic.
Under such a scenario rule making might be difficult and at times painful, but not impossible. There would be incentives for China and the USA to cooperate on certain rules, if not all.
It is possible to imagine a scenario where there is an adjustment to acknowledge the realities of power; reflected in the nature of the rules. But not throwing the order out and starting again.
In looking to how the rules-based order might evolve, the region’s small to medium powers do not have to be bystanders.
For them, rules are especially important because they lower costs and provide predictability, stability, and hopefully greater security.
But they do so by prescribing the freedom of action their governments enjoy; in other words, they constrain sovereignty. That is fertile ground for populists who are quick to portray such constraints as foreign meddling. But small to medium powers have a special obligation not to treat rules like a buffet where they pick and choose the ones that suit them. They benefit more from a rules-based order than great powers who can look after themselves.
When they work together, small and medium powers can have a substantial impact on shaping the rules that affect them. And it is not just confined to states. Successful ‘norm entrepreneurship’ has been seen in the campaign to ban landmines and the work of the International Commission on Intervention and State Sovereignty, which produced the doctrine of “the responsibility to protect”.
ASEAN has been cast as a rule taker rather than a rule maker; its Outlook on the Indo Pacific (AOIP) launched last year is no more than a set of principles to determine how it should assess the merits of initiatives posed by others. It has been cast as purely reactive.
If ASEAN is to maintain its cherished ‘Centrality’, it will have to become a rule maker and be proactive with initiatives like the AOIP. There have been calls from Vietnamese ministers, this year’s chair of ASEAN, for Southeast Asia to be more responsive and cohesive in the face of a range of security challenges. That in turn is likely to require on-going and bold institutional reform.
The flags of ASEAN in Ho Chi Minh City, Vietnam. Image credit: Mont592, Shutterstock.
There were some good ideas on that put forward by the ASEAN Eminent Persons Group report in 2006. More recently, former Indonesian foreign minister, Marty Natalewgawa, has led calls for better “crisis management” mechanisms within ASEAN. All this implies much greater urgency and energy on the part of the organisation than we have seen in the past.
ASEAN might be forced to abandon the ‘way’ of slow deliberation and consensus if it wants to be relevant as the 75-year-old US-led order gives way to a more complex and challenging rule-setting environment.
Donald Greenlees is senior adviser to Asialink, the University of Melbourne, and a visiting fellow at the Strategic and Defence Studies Centre, Australian National University. This article is adapted from a presentation he gave to the Council on Security in the Asia Pacific (CSCAP) annual conference in Hanoi on 5-6 December. The views expressed are his own.
Banner image: UN Security Council. Credit Andrea Izzotti.