29 July 2018

 

Recently criticised as ‘overused and increasingly meaningless,’[1] the problem with the rules-based global order as a national strategy is not inherent lack of meaning. It is the near total lack of robust debate in the Defence and strategic planning communities about the purpose, capability needs and effects of a rules-based defence strategy. Instead, Australia’s defence strategy remains steadfastly bifurcated. On the one hand, it is founded on a whole of government approach based on the rules-based global order, which is largely undefined other than by reference to limited current aspects of the international legal structure. On the other, it sets out a separate program for capability development.[2] What is missing is rational explanation of how the latter is intended to support the former. This poses both conceptual and planning problems.

The Conceptual Problem. Conceptualising a rules-based order as national strategy requires us to distinguish between the content of individual rules, and the idea of ‘law’ as a means of social organisation based on rules. Many militaries habitually view rules as a limiting factor on freedom of military action, and therefore the responsibility of legal officers as enablers – instead, in the same way that information operations, for example, seek social effects or modifications of enemy behaviour, law is a social concept that can be exploited to achieve strategic ends by planners and operators alike.

This is not clear in White Paper 2016. It is especially concerned with the effects of rapid change and uncertainty in Australia’s strategic environment and international relationships, including in the South China Sea and Middle East. Rules are said to offer a non-confrontational solution to competition between states and their interests because they are predictable, where such competition outside the rules framework has significant ‘implications for free and open trade.’[3] Yet this desire for the predictability of rules against the uncertainty of unconstrained (foreign) national power clashes with the parallel White Paper argument that the content of rules is a contemporary source of ‘friction,’ particularly in the cyber and space domains; so that individual rules become the source for, as well as the resolution to, tension.[4] Moreover, the White Paper acknowledges that the rules-based system itself is ‘under increasing pressure and has shown signs of fragility’ in response to political changes, the emergence of new powers and non-state actors, and the refusal by some (Russia and North Korea) to act consistently with existing rules of international law.[5]

The problem in adopting this content-based approach, in which differing views of specific rules become risks undermining the order, is that it misunderstands current international discourse. Close examination of developments in the South China Sea, for example, shows that: China’s engagement with dispute resolution procedures is based on argument about consent-based international legal jurisdiction while its claim of historic title sought to extend a concept already known to international law; coastal states rely on alternative rules of the law of the sea regarding sovereignty and usage rights; and third states seek the freedom of the high seas promised by international law. All are arguing within the rules-based framework, including China, although they do not agree on the content of the rules. Whether, and which, states are using the rules-based order instrumentally – that is, as a means to an end – does not detract from this.

The nature of the international legal system means that rules are not immutable: other than a very limited number of specific rules (such as the prohibitions of genocide and torture), the creation of international rules is an act of sovereign consent. Such consent is essential to the development of new rules, or abrogation of old.  And, critically, this process of consensual development occurs in a system which acknowledges all sovereign states as formally equal.[6] Where there is dispute about rules, international law does not require states to settle them in any particular forum or manner, only that they be settled peacefully, nor are states obliged to develop new rules to apply to new domains, such as space, if they do not agree.[7] Thus, the international rules-based order, as it exists, struggles to offer either the certainty or predictability on which the White Paper is predicated.

What this shows is that, while the Australian defence strategy speaks of a ‘rules-based global order,’ what it speaks to is a status quo based on certain preferred rules. Since the continued existence of individual rules is not within Australia’s control, a rules-based strategy cannot clearly offer the predictability White Paper 2016 seeks other than in a high-level systemic sense. That, however, requires consideration of the instrumental use of the concept of law in capability planning.

The Capability Planning Problem. From a strategic perspective, what a rules-based order offers is less certainty in international engagement than a positive opportunity to maximise physical capabilities by exploiting their perceived legitimacy; in other words, by taking advantage of the presumption that the social acceptability and moral rightness of military operations depends on their asserted lawfulness.

In this approach, lawfulness is determined by compliance with rules, whether or not they are inherently just rules, and legitimacy is determined by lawfulness. This currently manifests in extensive and public legal justifications for the use of force by governments; at the tactical and operational levels, it takes the form, for example, of defending allegations of civilian casualties during air strikes by a government emphasis on compliance with ‘very strict rules of engagement.’ What such an argument implies is that since what is right equals what is lawful, what is wrong extends only to what is unlawful. There is no room to say that the targeting decision might have been lawful and yet wrong.

A rules-based strategy makes compliance with law the essence of legitimacy in this way. Its effect, when achieved, is to economise on the level of force needed to maintain power or achieve a mission. That is, since other states and citizens at home and abroad are more likely to accept legitimate than illegitimate force, the cost and scale of coercive force required to achieve a mission is likely to be reduced, as opposition is reduced, when the force is perceived as legitimate. Moreover, if legitimacy derives from compliance with rules, it is objectively easier to demonstrate it to potential opponents than other models of legitimacy such as religion, morality or subjective ethics. Critically, this kind of strategising cannot be the preserve of lawyers, for the exact technical content of rules is not as important as the way in which societies engage with the concept of law.

The next step for an effective strategy is to link capability development with the strategic concept. This necessarily requires the instrumental use of law and legitimacy arguments. This author has recently proposed that the realisation of capability for a rules-based strategy could favour air power development over other environmental domains because of its perceived historical affinity with this ‘lawfulness as legitimacy’ culture.[8]  While not without weaknesses, the proposal seeks to answer the main shortcoming of the current forward capability program for the ADF – and challenge, through debate, alternate formulations that rationally link acquisition and development with the rules-based strategy. Such debate may show that, in fact, the defence capability element of a whole of government rules-based strategy, is to prepare for the contingency of its failure rather than to support it directly (although ADF personnel might be used in the interim for capacity building and presence tasks to support the work of the whole of government in preventing it).

Either way, if it is not possible to find a rational connection between capability planning and a rules-based strategy, then the efficacy of such a strategy for Defence, compared to the whole of government, needs fundamental rethinking.

Editor’s Note – Wing Commander Lewis has previously written about air power, legitimacy, and the rules-based global order in Air Power Development Centre Working Paper No. 44 ‘Air Power in the Rules-Based Global Order: Legitimacy as Capability for Future Forces.’

Wing Commander (Dr) Lewis’ most recent posting was as the Staff Officer (Legal) to the Chief of the Defence Force. She was commissioned into the Royal Australian Navy as an undergraduate Legal Officer in 2003. In 2014,  she transferred to the Royal Australian Air Force. Her operational service includes four tours of the Middle East area. Wing Commander Lewis holds a doctorate in international law and teaches that subject at the Australian National University College of Law. She has published a range of peer-reviewed legal research nationally and internationally, and is currently in the final stages of reading for the degree of Doctor of Philosophy in strategic sea power history at the Australian Defence Force Academy.

Although the author is a member of the Royal Australian Air Force, the views expressed in this paper are personal and do not necessarily reflect those of the Australian Defence Force or Australian government.

NOTES:

[1] Richard Menhinick, ‘The Rules-based Global Order’: Be Alert and Alarmed, The Strategist (Australian Strategic Policy Institute: 12 April 2018), available at https://www.aspistrategist.org.au/rules-based-global-order-alert-alarmed/, accessed 15 June 2018.

[2] Department of Defence, Defence White Paper 2016 (Canberra, 2016); and see also Department of Foreign Affairs and Trade, Foreign Policy White Paper 2017 (Canberra, 2017).

[3] Para 1.6. See also para 1.12.

[4] Para 2.16.

[5] Paras 2.23-6.

[6] Charter of the United Nations, article 2(1).

[7] Charter of the United Nations, article 1(1), for example.

[8] Angeline Lewis, ‘Air Power in the Rules-Based Global Order: Legitimacy as Capability for Future Forces,’ Working Paper 44 (Air Power Development Centre: Canberra, 2018), available at http://airpower.airforce.gov.au/APDC/media/PDF-Files/Working%20Papers/WP44-Air-Power-in-the-Rules-Based-Global-Order.pdf .