Defending or undermining rules-based order?

Last month, Prime Minister Scott Morrison was awarded the inaugural “Grotius Prize” from the right-wing UK think tank Policy Exchange for his support of the international rules-based order.

In his acceptance speech, Morrison articulated his efforts “to align the interests of the world’s great like-minded liberal market democracies… to ensure that the liberal worldview of economic and political freedoms continue to underpin global peace and stability, as they have done successfully since the Second World War.”

Prime Minister Morrison referenced Australian international relations scholar Hedley Bull, who drew upon “Grotian principles” in his work and his concept of international society. Hedley Bull conceptualised an international society underpinned by rules that constrain and enable the behaviours of states, even in conditions of anarchy.

According to Griffith University Professor Renee Jeffrey, a Grotian world “would be a world in which states upheld their commitments to international law, took seriously their duties to uphold principles of common humanity, and treated those over whom they have power with altruism, charity, and care.” Does this accurately characterise Australia’s foreign policy?

Perhaps Grotius’s most enduring international legal contribution is to the law of the sea. The concept of mare liberum ­– or freedom of the seas – had its genesis in Grotius’s writings in the sixteenth century, which stood in opposition to the mare clausum principle (closed sea).

In political narratives on the sea, Australia cleaves closely to the US narratives of “freedom of navigation,” reflecting the ways in which Australia’s ideal norm-based order is closely linked to its desired power-based order. These narratives are not always supported through action or policy.

Historically, Australia has adopted a flexible pragmatism to international maritime law when it has suited its interests. At times, its claims have been deemed excessive by international lawyers and other states.

It has at times sought to restrict freedom of navigation in its laws and security practices, including through introducing a compulsory pilotage law in the Torres Strait, declaring prohibited anchorage areas in its economic exclusion zone (EEZ), and introducing mandatory ship reporting in parts of its EEZ.

Essentially, these policies reflect attempts by Australia’s government to extend its security jurisdiction seaward, calling into question its commitment to the maritime “rules-based order.”

Another issue is the idea that a community of understanding exists around such notions as “freedom of navigation.” The global spread of such ideas about the seas as a “global commons” has been built upon foundations of hegemony and dominance as much as it has morality.

The principle that the oceans are res communis – available to all – and not could not be seized as property has been gradually compromised through developments of law of the sea in the second half of the twentieth century. The negotiations of the United Nations Convention on the Law of the Sea in the 1970s and 1980s attempted to balance the free seas concept with the security and resource concerns of coastal states.

Many of these coastal states were new and developing states seeking greater controls over oceanic space and resources in the water column and seabed. There were fears that the world’s oceans would become subject to a “scramble for seabed resources” that would benefit the most powerful states. Indeed, the naval powers of the time – the US and USSR – consistently advocated “free sea” principles.

Australia’s norm-based exhortations around the oceans reflect its material and power interests, as part of a maritime “Indo-Pacific” discourse centred upon aligning regional threat perceptions and the rarely admitted to objective of constraining the influence and might of China.

While terms such as “freedom of navigation” are deployed by several regional states, particularly advocates of the Indo-Pacific, this is not universally understood in the same ways. The notion that Australia’s (and the US’s) ideas of oceans governance are morally right and universal perhaps would have concerned Hedley Bull, who was suspicious of states that claimed to act on behalf of the international community.

In other areas – such as climate change and refugees – Australia’s contribution to international society appears less than rules-based or community minded. As I’ve argued in Australian Outlook previously in relation to Australia’s asylum seeker policies, in carving out exemptions (“exemptionalism”) from their purported standards of behaviour, states may contribute to undermining the legitimacy of international rules and open themselves up to accusations of hypocrisy.

The asylum seeker policies of successive Australian governments have hardly been driven by “altruism, charity and care.”  

Australia also has something of a pariah state reputation when it comes to climate action. The recently released Climate Transparency Report shed a light on Australia resistance to meet the global climate challenges.

Fossil fuels (oil, coal and gas) comprise 93 percent of Australia’s energy mix. While Australia has one of the highest emissions per capita – three times the G20 average – it remains one of only two in the G20 group of countries that is not developing a carbon price scheme.

It is also the world’s biggest exporter of coal and gas. Perhaps a new US administration may compel Australia to lift its game on climate action, but domestic electoral politics and corporate interests has thus far stifled Australia’s developing a more “community-minded” approach internationally in this area.

As an undergraduate, it was the work of Hedley Bull in The Anarchical Society that drew me to international relations. Rules matter in the conduct of international affairs. I for one would prefer see Canberra walking the walk on the “rules-based order” rather than talking to talk.