17.10.2018 Author: James ONeill

Rules Based International Order: the Rhetoric and the Reality


One of the most commonly used phrases by western politicians is their professed belief in theInternational rules based order.It is meant to convey their respect for international law and is invariably used in the context of criticising their enemies du jour, currently China, Iran and Russia who are supposed to epitomise the opposite of a rules based order.

Even the most casual observer of the geopolitics of the post world War two period knows that the gap between the rhetoric and the reality is immense. Countries not within the privileged clique of Anglo American European imperialism know this full well and have made the appropriate adjustments to their own policies.

A series of recent events however, suggest that levels of Western hypocrisy have reached new and dangerous levels. At the beginning of October, the United States secretary of the interior Ryan Zinke suggested that the United States and its allies could force a change in Russia’s middle east policy by imposing a blockade, preventing the movement of ships into and out of Russian ports.It is unclear whether or not Mr Zinke fully appreciate the significance of what he is saying, even given the unlikely ability of the United States to actually enforce such a blockade.

To mount a blockade requires the use of force. Such a blockade would not have the sanction of the United Nations Security Council and neither would it remotely come within the ambit of the self defence provisions of article 51 of the United Nations Charter. In other words it would be a direct violation of international law. As an act of war against Russia, Russia would be entitled to take appropriate steps to defeat such an illegal intrusion into its sovereign territory, and take other such actions deemed necessary to defend itself. War would be the inevitable consequence of the United States government taking Mr Zinke’s frankly insane advice.

In case one thought that was simply an example of the partisan stupidity and hubris characteristic of the American elites, more was to quickly follow. Two days after Zinke’s suggestion, the United States ambassador to NATO, Kay Hutchison alleged that Russia was in breach of its obligations under the ballistic missile treaty, an allegation Russia denies. Hutchison went further however, in saying that if Russia did not cease its development of the missiles in question, the United States would “take out” Russia’s missiles and the places where they were being developed.

The only way in which the United States could “take out” Russia’s missile facilities would be by a missile attack, most probably with nuclear weapons. To describe that policy as lunacy would be a gross understatement.

On 3rd October, following an adverse ruling by the International Court of Justice, ruling in favour of Iran’s complaint against the further imposition of sanctions by the US against Iran following the US withdrawal from the JCPOA (itself an example of unilateral disregard for international agreements to which it had been a party) the US announced that it was cancelling the 1955 Treaty of Amity with Iran. US Secretary of State Pompeo announced that it “should have been done 39 years ago” i.e. after the 1979 revolution overthrew the puppet regime of the Pahlavi family. One would need a microscope to detect evidence of “amity” during those 39 years. The hostility towards Iran is only explicable in terms of US support for the Israeli government, itself a gross and continuing violator of International Law.

Less noticed at the time of the American spoiled child like response to the ICJ ruling was the US government also announcing that it was withdrawing from the Vienna Convention on Diplomatic Relations. This is one of the more important International legal instruments as it provides a mechanism for the peaceful resolution of disputes through compulsory procedures (among other important provisions). It is a key element of the ‘rules based international order’ to which the US professes allegiance.

One of the Vienna Convention’s other key elements is the 1961 Optional Protocol which codifies the basic rules of international Law enabling diplomatic missions to operate without fear of coercion by the host State. According to the International Court of Justice, the very success of the Protocol depends on States observing international Law. The United States, which was one of the original drafters of the original Protocol, has now abandoned that central tenet of international Law.

A further recent illustration was the moving of the US embassy in Israel from Tel Aviv to Jerusalem. The Palestinian Authority has petitioned the ICJ for a declaration that the moving of the embassy was a breach of international Law. It is likely to be successful.

The Palestinian claim also relies upon the aforementioned Vienna Convention, another element of which covers the location of foreign embassies. Those embassies are required to be located in the capital cities of the host country. Tel Aviv is the capital of Israel, not Jerusalem. Jerusalem is an international city with a unique status. That status was set by UNSC Resolution 181 of 1947 which designated Jerusalem as a “separate entity “ under United Nations protection. The US voted in favour of that resolution.

UNSC Resolution 476 of June 1980 declared that “all actions by Israel, the occupying power which purports to alter the character and status of the holy city of Jerusalem have no legal validity and constitute a flagrant violation “ of Jerusalem’s status. That resolution was passed unanimously and therefore included the United States. That resolution was reinforced by a further resolution (478),also in 1980, that called “upon all States to refrain from the establishment of diplomatic missions in the holy city of Jerusalem. Again the US voted in favour.

As recently as December 2016 a further UNSC Resolution (2234) stated that Jewish settlements in the occupied territories (occupied since 1967 in breach of international Law) “have no legal validity and constitute a flagrant violation of international law”. The vote on that occasion was 14:0 with the US abstaining. Notwithstanding this history (and there are multiple other examples) the United States continues its unwavering political, military and financial support for Israel. The moving of the US embassy to Jerusalem is clearly a “flagrant breach “ of international law, as the above UNSC Resolutions make unequivocally clear. It was also in accord with the wishes of the Israeli government. The silence of western governments is an implicit endorsement of this complete disregard of the rules based international order they purport to uphold.

Two recent pieces of legislation passed by the US represent further examples of of where “rules” and “order” are interpreted solely in terms of the US national interest and show a cavalier disregard for the sovereign rights of other nations. The first of these was the Countering America’s Adversaries through Sanctions Act (CAATSA) under which the US allocates itself the power to impose sanctions on individuals, companies and countries that have the temerity to conduct business relationships with countries of whom the US disapproves.

This has most recently been applied to European companies doing business with Iran. Notwithstanding the European Union enacting legislation to protect EU companies, such as France’s Total, that oil giant has capitulated and others will undoubtedly follow. Such third party sanctions are manifestly in breach of international Law, including the WTO and GATT agreements. Such bullying may work for a period, but an increasing number of countries are frankly sick of it and are making alternative arrangements at an accelerating pace. For present purposes it is sufficient to note that such blatant commercial and geopolitical self interest does not sit comfortably with the rhetoric of support for a rules based International order.

A second example has been the passage through the US House of Representatives (it has yet to pass the Senate) is the Interdiction and Modernisation of Sanctions Act. This Act allows the US Navy to inspect Chinese, Iranian, Syrian and Russian ports. This Act is truly astonishing in its hubris. That it would involve hostile acts of war against the designated countries is self evident. That it is also shows a profound contempt for the sovereign rights of those countries is similarly self evident. It hardly needs to be added that it would also be a flagrant breach of international law.

That any attempt to actually put into practice would be met with, to put it mildly, determined resistance by the nation’s affected, goes without saying. That such a situation carries with it enormous potential dangers is also obvious. Again, at the risk of repetition, it is simply impossible to reconcile this legislation and the policy intent that underpins it and other acts of aggression over the past many decades with any real concept of a rules based international order that truly serves International peace and respects the legitimate rights of sovereign nations.

The rhetoric of western political leaders therefore, when espousing their belief in the rules based International order is only explicable if one accepts that what they really mean is “our rules, our order and our interests are paramount. If you don’t accept that, then sanctions, bombing, regime change and occupation will follow.”

It would be naïve to expect any fundamental change in western policy. Indeed, as the US empire enters its sustained decline from hegemonic status its flailing and failing actions may intensify. Herein lies perhaps the greatest danger. What Eisenhower called the “military industrial complex “ in 1961 and warned of its dangers even then, has grown exceedingly rich in the intervening years. It does not take kindly to attempts to limit its influence. It needs to be recalled that President Carter wanted to withdraw US troops from South Korea 40 years ago. Trump has said similar things about Syria and Afghanistan. Neither are likely. If he pushes too hard he faces the same fate as Kennedy.

Arguably the best prospects for avoiding war lie in the ongoing and increasingly successful development of the alternative multi polar world being developed by Russia and China. In the meantime it would be a substantial advance if the rhetoric of the west about its belief in the value of international Law as the basis of relationships between nations was reflected in the their actual behaviour.

James O’Neill, an Australian-based Barrister at Law, exclusively for the online magazine “New Eastern Outlook”.

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