29
November
2019

Multilateralism & the Rules-based Order:

What role for international law?

Kennedy Graham

Yesterday I attended MFAT’s annual Beeby Colloquium on International Law. Having had the privilege of working closely with Chris back in the ‘80s, it is quite a moving experience to attend these events.  It is also, equally, an annual highlight in terms of intellectual stimulation and insight into issues of international law.

In earlier blog-posts, I have touched on the issue of a multilateral rules-based order and the competing perceptions among prominent national leaders as to what this means and what is might be composed of. At the 2019 Colloquium, a more penetrating and analysis emerged from the informed and thoughtful contributions, not least from one of the Centre’s Board members, Duncan Currie, on the ‘common heritage’ concept and the law of the sea. 

A highlight yesterday was some personal comment advanced by MFAT’s Acting Dep-Sec, Victoria Hallum.  Here are a few of her observations:

“New Zealand’s attraction to multilateralism and multilateral rules is strong.  Multilateralism allows us to pursue enduring multilateral solutions to shared problems.   New Zealand has tended to see the best solutions as underpinned by multilateral rules, because when States consent to being bound by these international solutions under international law, it increases the chance that they / we can rely on these solutions, and enhances stability and predictability.

However the multilateral system, as we know it, has been created in a way that is very State-focused and State-centric.  International law is particularly so, founded as it is on the principles of state sovereignty and state consent.  States are the main subjects of international law and non-State actors are still only recognised to a limited degree, with very constrained rights and responsibilities. There is some recognition of international organisations, the ICRC has a special status, we have international criminal responsibility for individuals, and investors can have rights under international investment law – to cite some examples.  But this is still very limited.  

Yet at the same time, non-state actors have more power and more ability to engage and have impact across national boundaries than ever before.  I am talking about:

  • multinational companies that operate apparently seamlessly across borders ;
  • distant water fishing vessels flying the flag of one state, owned by a corporate entity in another, crewed and mastered by nationals of a third state;
  • armed militias and terrorist groups;
  • NGOs ranging from well-orchestrated and transparent membership-based organisations through to more amorphous covert actors such as Anonymous;
  • And also the way in which individuals, aided by technology, can coalesce almost organically around particular issues, such as the “Me Too” movement or the recent climate strikes.

The consequence is that many of the current ‘wicked problems’ requiring international solutions cannot be solved by states alone.  Coming to terms with this and finding ways to engage with non-state actors to solve transboundary and global commons issues could be seen as the next frontier of international law.” 

My own take-away from the Colloquium is that, not only is international law under siege for various reasons, but the underlying aspects of the rule of law, at the global level, are up for re-examination.  Let me briefly try to encapsulate these below.  They are, to the extent they can each be captured in a word: jurisprudence, legitimacy, application, integrity and technology.

One paragraph on each – very much my own interpretations:

1. Jurisprudence

There was debate over whether the contemporary (1945-2019) ‘multilateral rules-based-order’ is experiencing a fundamental fragmentation, i.e. breaking down, or whether it is simply ‘enjoying’ a more vigorous input from different political systems (especially Confucian) beyond the traditional (Western) imprimatur.    The fundamental competing value systems of stability and liberty need some dialogue and reconciliation before a true jurisprudential foundation for ‘global law’ can be agreed.

 2. Legitimacy

Victoria, and others, queried whether, in the 21st c. world, international law can be exclusively state-centric and rest on consent, or whether it needs comparable input from private corporations.  Can international (global?) law be legitimate if the legislative process does not accurately reflect the spread of power/influence?  Or, should it remain state-centric or at least public in source, with advisory input from the private sector?    

 3. Application

Should international law continue to be applied primarily to States, or should the recent trend to apply criminal international and humanitarian law to individuals be continued?  To what extent should the success of the ICJ encourage the concept of ‘compulsory jurisdiction’, and to what extent should the travails of the younger ICC give reason for pause?  

 4. Integrity

To what extent should the principles of good faith and of sovereign equality be maintained with rigour, and to what extent should it be tempered in the ‘real world’ by an acceptance of ‘exceptionalism’?  To the extent the latter is accepted, how much is this compatible with purely US exceptionalism, compared with that by other major powers?

 5. Technology

To what extent can international law keep pace with the extraordinary pace and depth of 21st c. technological change?  How much of this ‘wicked problem’ applies to digital technology (social media) and how much to weaponry (nuclear weapons, autonomous weapons)?   How to define some of this?  Once defined, how to redress the stated problem? 

 Food for thought.  Areas for the Centre to explore.

Dr Kennedy Graham is Director of the NZ Centre for Global Studies  

Director

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