Defence Minister Marles, always singing from the same tired US song book, fails to recognise the difference between international law and ‘a rules based international order’ (RBIO) that the US preaches. And there is a big difference. RBIO is code for US rules.
In February this year he told us that ‘the rules-based order that has been vital to our security and prosperity is increasingly under pressure’.
In October he told us that RBIO was:
‘to give states a means to resolve disputes and address common challenges through a set of institutions operating under agreed norms and rules. This is what we mean when we talk about the global rules-based order. …In short, the global rules-based order, when applied by all, helps offset the advantages of the powerful by giving agency to smaller states.
This is the system we think of when Australia talks about the rules-based order. It’s not abstract for us, nor are we cynical about it. We need it, and at a time when our strategic environment is coming under increasing pressure, we will need it even more.
The question is how we best ensure its relevance today’.
We read about RBIO especially in articles about China and the South China Sea. The US preaches about RBIO rather than conforms to the strictures of international law. For example, it enables the US to excuse Israel’s violations of international law. By posing an alternative set of rules to which many nations do not consent, it undermines international law, which depends on the consent of nations to international charters and conventions.
In an important article in Cambridge Core, 21 February 2023 by John Dugard points out that:
“The RBIO is something other than international law. It is an alternative regime outside the discipline of international law which inevitably challenges and threatens international law. Charitably it may be seen as an order comprising values of a liberal order. Less charitably it may be seen as a competing order advocated by some Western states, particularly the United States, which seeks to impose the interpretation of international law that best advances the interests of the West, particularly those of the United States. Unlike international law it does not seem to be a universal order. Instead, it is an order employed by the West, again particularly the United States, to ensure its dominance.
He specifically describes the rationale behind the RBIO.
First, the United States is not a party to a number of important multilateral treaties that constitute an essential feature of international law. It is not a party to the Law of the Sea Convention which means that it is compelled to reprimand China for threatening the ‘rules-based international order’ in the South China Sea rather than international law. It is not party to a number of fundamental treaties governing international humanitarian law, including the 1977 Protocols to the Geneva Conventions on the Laws of War, the Rome Statute of the International Criminal Court, the Convention on Cluster Munitions, and the Anti-Personnel Mine Ban Convention.
Second, the United States has placed interpretations on international law justifying the use of force and the violation of international humanitarian law that are controversial and contested. Its interpretation of the right of self-defence to allow pre-emptive strikes and the use of force against insurgents/militants characterized as terrorists are widely disputed. The resort to the use of force as a species of humanitarian intervention in the 1999 bombing of Belgrade, conducted under the auspices of NATO, is likewise disputed.
Third, the United States is unwilling to hold some states, such as Israel, accountable for violations of international law. They are treated as sui generis cases in which the national interest precludes accountability. This exceptionalism in respect of Israel was spelled out by the United States in its joint declaration with Israel on the occasion of President Biden’s visit to Israel in July 2022
See the full text of John Dugard’s article here.
So, when Richard Marles talks about an RBIO he should know it is a US invention and not about ‘international laws.’ It is code for US rules.
John Menadue is the Founder and Editor in Chief of Pearls and Irritations. He was formerly Secretary of the Department of Prime Minister and Cabinet under Gough Whitlam and Malcolm Fraser, Ambassador to Japan, Secretary of the Department of Immigration and CEO of Qantas.