The rules-based order is breaking down before our eyes

In an edited version of a speech delivered at the Restoring Democracy launch in Melbourne, Gillian Triggs says that weakening respect for international law, human rights and democratic institutions is placing both global stability and Australian democracy under pressure.

On this day 125 years ago, Australians gathered at the Exhibition Building here in Melbourne for the opening of the first Parliament of the Commonwealth of Australia under the Federal Constitution. The Tom Roberts painting of the event – The Big Picture – shows confidence and optimism for the future of Australia as a modern democratic nation. 125 years later that confidence and optimism that dissipated.

Our purpose today is to refresh, renew and reform Australian democracy, to meet the contemporary challenges of globalisation; the rise in civil and international conflict, climate change, the movement of millions of people seeking international protection and opportunities, threats to free trade, pandemics, and growing inequality and injustice.

In the 21st century we have seen a decline in respect for the vital elements of democracy, especially a decline in respect for the rule of law, though, of course, this has never been perfect. I support the efforts today to revive our commitment as Australians to the democratic ideal through civic education about the constitutional roles of the executive, parliament and an independent judiciary, to the principle of the separation of powers and the rule of law, and to increased local and community participation in decision-making, and to economic justice and international engagement.

While the challenges to democracy within Australia are real, my focus is an international one. For the health of democracy and the rule of law cannot be understood only by reference to national issues. In our interconnected world, we must consider how the international rule of law can be strengthened to respond to global challenges that affect us all.

Indeed, it is no wonder that the decline in respect for the principles of democracy in national laws is reflected in international behaviour.

Let us recall the modern foundations of the international rules -based order that lie with the UN Charter agreed in 1945 at the end of the Second World War by 51 nations, including the Permanent members, China, Russia, UK, US, and France, and Australia as a founding member. In 1948, another major foundational document, the Universal Declaration of Human Rights, was agreed by the UN General Assembly under the Presidency of Australia’s Doc Evatt, an precursor to the strong support Australia has long given to the evolving rules-based order.

The UN Charter set the core values of the international order:

We the peoples of the UN determined to save generations from the scourge of war and to affirm fundamental human rights and the dignity and worth of the human person and in the equal rights of all agree:

That all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.

Over the last 80 years, the international community has agreed to an unprecedented and comprehensive body of laws to promote international peace and human rights.

Despite this growth in international law making in the 20th century, in the 21st century we have seen respect for the rule of law in international relations decline globally. Today, there is a weakened respect for multilateralism and a retreat from international legal obligations, notably by the very nations that negotiated, promoted and benefited from a global rules-based order.

The examples are many.

• The optimism and vision of the United Nations Charter have crumbled as the Security Council has failed to meet its primary objective of peace, sidelined by ad hoc coalitions of the willing, often cobbled together under US leadership, and the reckless use of force by powerful nations. Cynical and opportunistic use of the veto by the five Permanent Members has brought the Security Council to its knees, sidelined in the conflicts of Ukraine, Gaza and Sudan and blocking the UN Charter principles for peace and security.
• Deliberate undermining of the United Nations and its agencies in international affairs, partly through drastically reduced budgets.
• Ruptured the global prosperity fostered by the WTO rules, creating chaos in the trading regime efforts to reduce tariffs and achieve fair trade.
• Rise in civil and international conflicts: Sudan, Ukraine, Gaza, Iran, and Africa. Pope Francis observed that we are already in a third world war, albeit fractured.
• National security and the right to self-defence are invoked selectively to justify egregious breaches of territorial integrity in Ukraine, Iraq, Lebanon, Iran and most recently Qatar. Contrary to the Geneva Conventions, citizens today are the target of aggression in Ukraine and Gaza Iran and Lebanon, not merely collateral damage.
• China challenges the UN Law of the Sea treaty, UNCLOS, by claiming most of the South China Seas as within its Exclusive Economic Zone, one of the world’s busiest trade routes, despite having no foundation in international law and posing risks of conflict.
• Yet another global humanitarian crisis is the plight of the estimated 130 million people under UNHCR’s mandate, refugees and people forcibly displaced and seeking protection across national borders or are displaced within their own countries.
• These rising movements of people forcibly displaced compound trends to extreme populist nationalism, prompting denial of refugee protection and anti-migration demands, now a leading political issue globally, including in Australia.

In trying to understand the failure of international law and its institutions to reduce conflict and promote peace and human rights we need to recognise that the world is very different from the post-war years. From the original 51 founding nations in 1945, there are now 193 sovereign members of the UN, many achieving independence from colonial powers. The Democracy Index compiled by the Economist Group estimates that there only 26 of the 193 nations are full working democracies. The remaining 167 nations are listed as flawed democracies, hybrid or authoritarian.

The Secretary-General of the UN, Antonio Guterres concluded in 30 January this year that the UN is today at risk of “imminent financial collapse”; its agencies are mortally wounded by underfunding, and humanitarian and development aid programs are drastically declining as nations retreat from a multilateral cooperation to a unilateral, internal focus.

Canada’s PM Mark Carney in his Davos speech went further, declaring the end of the rules based international order quoting Thucydides:

“the strong can do what they can and the weak must suffer what they must”

I believe PM Carney goes too far. We should not be blinded by the illegal acts of rogue or maverick nations… albeit they may be immensely powerful.

This is because it remains true: the international rule of law has been generally respected over the last 80 years, mainly because it is in all our mutual interests to do, especially as these rules are based in ethical and moral imperatives.

Most sovereign nations continue to see the mutual benefits of the international rule of law and today are finding ‘work arounds’ to ensure that these rules continue to apply.

But, international law fails spectacularly in restraining nations from aggression where their perceived national interests are overwhelming, that is, typically when territory, borders and rich natural resources are at stake. It is notable, for example, that the conflict in Eastern DRC, North Kivu Province, with Rwanda, has led to the displacement of over 8.1 million people essentially over control the gold mines and lithium deposits in DRC.

All this may seem very abstract.

A practical example of the decline in adherence to multilateral rules arises in response to the global movement of peoples.

UNHCR estimates that by the end of June 2025, 117.3 million people had been forced to flee their homes globally due to persecution, conflict, violence, human rights violations or events seriously disturbing public order.

Among them were nearly 42.5 million refugees. In addition, there were 67.8 million people displaced within the borders of their own countries and 4.4 million stateless people, who have been denied a nationality and lack access to basic rights such as education, health care, employment and freedom of movement.

While just one example of the decline in adherence to the international rule of law, refugee law has proved to be one of the most toxic issues globally, one that has led to a rejection or distortion of hitherto well-respected international laws and the rise of executive powers by increasingly autocratic governments.

Under the 1951 Refugee Convention nations are bound to protect those fleeing persecution and conflict, refugees have a universal right to claim asylum, to non-discrimination, due process, to work and education. Populist advocates have used immigration as a lighten rod for discontent, hatred, and racism distorting political debate, our politicians seizing political advantage from what could and should be manageable as a global phenomenon.

This brings me to Australia’s refugee policies.

This country is a relatively successful democracy and a leader, punching well above its weight in supporting international law from the early days of drafting the UN Charter and the Universal Declaration of Human Rights, all the way to the creation of the International Criminal Court. Australia has been a strong advocate for the GATT principles of fair trade and, later, the WTO, and has led the way in negotiating many human rights agreements, including the disabilities convention.

Australia has been a global leader in protecting refugees fleeing conflict and persecution, Australia was one of the 26 states to ratify the 1951 Refugee Convention and has been one of its most committed supporters of refugees, that is, until about 2001 and the Tampa affair that reversed Australia’s humane policies to protect refugees under the Refugee Convention to border control and security.

Today, Australia’s laws and policies with respect to refugees are inconsistent and schizophrenic; we offer the second highest number of resettlement places globally, and a gold standard refugee program, yet we have adopted some of the most draconian offshore detention policies, in breach of our international obligations.

From about 2012, Australia introduced laws to deny the right to asylum and to detain refugees in isolated detention facilities in Nauru, PNG and Christmas Island, including the detention of children without education for years, causing severe mental and physical harm. Australia’s continued policy of transferring refugees to Nauru, shifting the burden and responsibility to the poorest, developing states.

What then are the solutions?

First, education and civic awareness of international laws. We need to ensure a better civics education about the principles of democracy and international law to ensure our community understands democracy and human rights and holds those responsible to account.

Second is the role of civil society. To know about democracy is one thing. To practise it is quite another. It is therefore essential to engage citizens in our day-to-day democracy, to engage municipal councils, businesses, trade unions and professional associations, community organisations, and educational, cultural, religious and ethnic community associations.

Twenthieth Century top-down rules-based international regime may evolve in the 21st century with a stronger role for civil society.

Finally, an Australian Human Rights Act through federal legislation.

Australia is the only common law country in the world that does not have a Charter of Human Rights. This explains why the High Court could, in the Al Kateb case, agree with the Government that a stateless man who was not a refugee could be held in mandatory detention indefinitely where no nation would agree to accept him.

It took another 20 years before the High Court in NZYQ in 2024 overturned this decision. Today, administrative detention of a non-citizen must be reasonably necessary for a legitimate non-punitive purpose.

In a recent highly questionable attempt to undermine the High Court, the Government passed a law – termed the ‘Anti-Fairness Act’ – to deny the common law right to natural justice to those people being deported to Nauru. The Act is a denial of basic international human rights to due process, the deportation being tantamount to continued mandatory detention on a tiny island and the denial of something Australians understand, fairness.

In the absence of a Federal legislated Human Rights Act, Australia can continue to act with impunity with respect to its obligations under both Refugee law and wider international law.

Importantly, with growing polarisation and divisions within Australian society, a Human Rights Act can bring people together with common values of dignity, respect, equality and justice, providing processes to deal with grievances, and ensuring accountability. In short, we should place the national focus on harmony rather than identity.

A Human Rights Act at the Federal level can improve the lives of all people living in Australia by providing an avenue for justice that we can see at the state level in Victoria, ACT and Queensland including evictions from public housing of victims of domestic violence, support for people with disabilities, and ensuring the rights of children to quality education.

Democracy and the rule of law is under threat globally and in Australia. We see a fragmentation of political parties and a drift to extreme left and right views that leave a vacuum in the sensible middle. Our meeting today is a valuable step to finding principled and pragmatic solutions that can reinvigorate our commitment to democracy and to the rule of law both within Australia and internationally.

 

This is an edited version of a speech at the Restoring Democracy launch in Melbourne Town Hall last weekend.