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Whither the rules-based order?

The world is today watching on TV whether former President Trump is morally culpable for causing the 6 January 2021 riots, or legally culpable.

ANDREW SHENG |

Every day, we are told we must defend the rules-based order. But whose order? What rules? Why should we defend an order if we did not have a say in shaping it? All this is in the realm of politics and geo-politics. The biggest thinker who shaped the current neoliberal order was Austrian philosopher Friedrich Hayek (1899-1992), whose ideas of classical liberalism of freedom, democracy and self-order of markets dominated global relations. Neoliberalism was put into practice in the 1980s, when US President Ronald Reagan and British Prime Minister Margaret Thatcher pushed through the free-market philosophy that swept away Keynesian state intervention of the 1950-1970s.

The deeper thinker on the whole question of constitutional law, politics and international order was German jurist Carl Schmitt (1888-1985), whose influence on conservative political circles in almost all the Big Powers has been growing. I only became aware of Schmitt’s work when Noema magazine wrote an editorial on Schmitt’s Nomos of the Earth (1950). Schmitt is controversial, because he essentially wrote the legal basis for Nazism in the 1920s, which accounts for his ostracization (in today’s language “cancelled”) from academic circles for decades. Schmitt was a brutally realist thinker who explored the legal foundations of European political theory.

Schmitt argues that no order can function without a sovereign authority. A state is legally constituted when the politics distinguishes between friend and enemy and when the citizens are willing to fight and die for its identity. The state alone is given the power of violence (and enforcement) by the citizens to enforce the law. Schmitt is considered an authoritarian supporter, because he saw sovereign power resting ultimately in the Executive (rather than the Legislature or Judiciary) because the sovereign (i.e. the President) decides on the exceptional situation, where he/she must suspend the law because of war or assume emergency powers in order to restore order. Decisions by the Executive are either bound by law or bounded by his or her moral bearings.

The world is today watching on TV whether former President Trump is morally culpable for causing the 6 January 2021 riots, or legally culpable. The Ukraine war is being supported by Nato on a matter of moral principle for a non-member, but if the war escalates to nuclear global destruction that kills all, how do we trade off the individual rights with the collective right of everyone else to survive? Schmitt dissected European constitutional laws and international order, dividing them into three phases: pre- 1500, 1648 to 1919 (World War I) and thereafter. Before the discovery of America, European powers fought each other under a religious cloak, since the Pope decided on disputes of rights on moral grounds.

Indeed, it was the Papal Bulls of 1455 and 1493 that authorized the Portuguese and Spaniards to conquer all lands and seize and enslave Saracens and non-Christians in the Americas, Africa and Asia. The religious rationales comprised the Domination Code whereby Christians can rule over non-Christians and possess their property, as well as the Discovery Code, whereby lands owned by non-believers are treated as terra nullius (empty land), meaning non-Christian indigenous peoples do not have rights. But when the Dutch and English started fighting with the Portuguese and Spaniards over overseas territories, what was the legal justification? Dutch jurist Grotius (1583-1645) provided the secular rationalisation that discovery alone is not enough, but since there was freedom in the seas, occupation by a sovereign state confirms rights seized through war.

Schmitt argued that Jus Publicum Europaeum (European Public Law) emerged after the 1648 Treaty of Westphalia to allow sovereign countries to have the right to go to war based on their own judgement of justice and necessity without interference in each other’s domestic affairs. This changed after the end of the First World War, when the 1919 Treaty of Versailles treated the losing side as criminals, with their rights cancelled or confiscated. Whilst the Europeans were busily fighting each other, the United States rose in global power and imposed her 1823 Monroe Doctrine that asserted that she has her own sphere of influence, with the right to intervene in Central and South American states. That sphere of influence would spatially cover cultural, economic, military, political and, today, technology exclusivity beyond legal sovereign borders.

Schmitt was prescient in seeing that where war is fought on the basis of “good versus evil”, in which all rights of the other side are “cancelled” (like the foreign exchange assets of Afghanistan and Russia are frozen or seized), the situation may be an unstable equilibrium. The unstable European security architecture was settled decisively by the United States in two World Wars because of her overwhelming military, economic and industrial power. But in today’s multipolar situation, who decides on the rules of the international order? If both sides accuse the other side of being evil and illegitimate, who decides other than the use of arms? To cut a complex story short, the Nato military alliance, comprising nearly one billion people and 47.3 per cent of world GDP (2020) assumes its status quo role as the final arbiter of the “rules based order”. The problem is that BRICS countries, plus Indonesia have 3.5 billion population with one quarter of world GDP in market terms (25.6 per cent).

However on GDP PPP terms, they are near parity with Nato and therefore may have their own views on the international order. What if the larger non-Western countries want their own version of the Monroe Doctrine? The moral principle that we all should live peacefully on one planet should override sovereign nations fighting over power and ego from turf to space, when humanity could be burned by climate warming or nuclear war. For Nomos (or order) of the Planet, rather than the Earth, we should all rationally cooperate. If we truly believe in democracy, can the eight billion people of the world vote on the rules-based order, or do we still leave it to G-7? No order is stable without true legitimacy on democratic principles. How to achieve that order remains a truly open question.