ArticleR.I.P. the rules-based international order! So said Canadian PM Mark Carney recently when addressing the Australian parliament, continuing the eulogy for the post-World II order he began at the World Economic Forum in Davos. There, Carney declared that “the old order is not coming back”.
Which presumes it ever existed.
But international law has never been truly ‘international’ or truly ‘law’. To function, the rules-based order always relied more on a moral climate that went beyond human opinion, or law.
The question is not ‘can the old order be revived?’ It’s ‘why did it work and what’s the prevailing “weather” now?’
I studied international law while on exchange at The Geneva Graduate Institute. The food was amazing and the faculty was brilliant, but I was struck by the system’s toothlessness. International law has no global independent judiciary. It has no global law enforcement agency. And perhaps most obviously, it’s only ever voluntarily adhered to – like self-selected speed limits or optional taxes. For a young law student, it was a jarring reality check.
Recent events have confirmed that self-interest and power reign supreme in global affairs. Examples include Russia’s invasion of Ukraine, China’s questionable trade and maritime practices, Iran’s flouting of its obligations under the Nuclear Non-Proliferation Treaty, and now the US and Israel’s attacks on Iran. This all reflects a global system that is undeniably less stable, less predictable, and less institution-led than it once was.
It’s one where, as the ancient Athenian general Thucydides put it, “The strong do what they can and the weak suffer what they must.” Or as Harry Potter’s nemesis Voldemort declared, “There is no such thing as good and evil … only power and those too weak to grasp for it!”
The big powers aren’t the only ones that lead with self-interest. Australian governments (from both sides of politics) have rarely had a problem with alleged breaches of international law when carried out by an ally. Australia didn’t blink when the US waged war in Vietnam, overthrew Saddam Hussein, or bombed Afghanistan as part of the “War on Terror”.
The increasingly evident infirmity of international law should remind us of the moral significance of our principles. Our international system of norms, standards, and protocols have only ever been thin constructs that reflect something deeper. The baby is much more valuable than the bathwater.
The French Catholic philosopher Jacques Maritain played a crucial role in the shaping of the post-World War II international order. He articulated the Judeo-Christian idea of human dignity – derived from the claim that all people are made in God’s image.
Maritain’s thinking laid the philosophical foundations that made way for what people now refer to when they throw around words like “democracy”, “rights” and “equality”. Maritain was not the sole architect of the system, but he was arguably the most influential voice at the table.
Maritain’s most famous insight was that a shared moral consensus on the dignity of people is possible even when people differ on political, religious, and racial grounds. For him, human dignity – unlike international law – is not a political construct. Rather, it flows from who we are – from a deeper moral truth about what it means to be human. Whether the international law experts are right or not, the more important truth is that Voldemort was wrong.
There is always more than power in play. Laws don’t give rise to dignity. Dignity gives rise to laws.
At a time when liberal democracy itself is under attack, the legacy of this moral vision endures. The humanitarian legal framework through which the Australian Government granted asylum to members of Iran’s women’s soccer team did not come together in a moral vacuum. It stood on the shoulders of the ancient moral precept of intrinsic human dignity – through which all people have the right to life, safety, and the freedom of conscience.
They’re the same truths that were referenced at the Nuremburg trials 80 years ago, when 19 Nazi war criminals were found guilty of war crimes. There, several defended themselves by claiming they were just following orders and therefore had not broken any laws. The court rejected their defence, declaring that there was a higher law – a natural law, a moral law – to which they were ultimately accountable.
People, and nations, will always grasp for power. Our systems may be fallible and our world unpredictable. But this idea of a higher natural law has provided the soil in which liberal democracies have grown. Our instinct to mourn the fading rules-based order nods to the reality of a moral universe.
Uncomfortable questions now face us. Did we know what we had before we started losing it? Because there is always a rules-based order. The question is, whose rules?
Max Jeganathan is a Senior Research Fellow at the Centre for Public Christianity. He served as an adviser in the Rudd-Gillard governments and is undertaking a PhD in law on the ethical foundations of liberalism.
Photo: Mark Carney speaking at the World Economic Forum in Davos. World Economic Forum/Flickr (CC BY-NC-SA 4.0)