The rules-based order

Manoj Joshi

Distinguished Fellow, Observer Research Foundation

The Quad joint statement has committed its members to promoting ‘a free, open rules-based order (RBO), rooted in international law’. This sounds authoritative and impressive. The problem is that no one is clear as to what the RBO means. Even though people are agreed that we all should follow a rules-based system in international affairs, there is no agreement on which rules, whose rules, and, indeed, the term itself.

India is in a bind. It is following America’s lead in implementing the RBO in the Indo-Pacific, but is complaining about western organisations questioning its adherence to a rules-based democracy.

One reason for this is that international law has been kept deliberately weak so as to allow countries to exercise their sovereign functions which clash with provisions of the international law. Another is that these days, when it comes to international law, the position of a country is often dictated by its current geopolitical inclinations.

Our apex international law institution, the UN has draconian provisions outlawing war. Chapter VI of the UN Charter enjoins all countries that have disputes that may lead to war to seek a solution through peaceful means. If this doesn’t work, they are to refer it to the UN Security Council (UNSC) which could recommend solutions.

Some issues may come under the draconian Chapter VII which empowers the UNSC to use non-military measures, like embargoes and sanctions to resolve the situation. If this fails, under Article 42, the UN can order military operations. This would be handled by a special ‘military staff committee’ under Article 47. Even the right to self-defence is proscribed in the UN RBO. Article 51 accepts that all states have the ‘inherent right of individual and collective self-defence’ in the face of an attack, but thereafter the member must report to the UNSC, which alone can authorise military actions to restore peace.

Yet, despite these impressive legal powers, the UN law has been more violated than obeyed. The UN Charter was drafted in the wake of World War II by the victors of that war, who fell out soon thereafter. Since the key body empowered to keep peace is the UNSC, geopolitics, rather than idealism, has been in command. Even the country that claims to personify the RBO — the United States — has, more often than not, simply ignored the UN law in the many destructive wars that it has made since 1945.

India was perhaps the first victim of this situation. In a fit of idealism, Jawaharlal Nehru took the issue of the tribal invasion of Kashmir to the UN. But then geopolitics kicked in. British officers who commanded the Indian and Pakistani armies knew just how the invasion had been organised and Pakistan government’s role in it. But having partitioned the country, the British felt that their national interest lay in backing Pakistan. So, at the instance of the UK, the complaint of a tribal invasion was changed into the ‘India-Pakistan Question’ in the UNSC. A chagrined India very soon got the drift. Pakistan acknowledged its forces had been operating in Kashmir six months after the fact, and only when a UN Commission was scheduled to visit the region. Yet, the UNSC did not even give them the proverbial slap on the wrist. Fortunately for India, it had taken up the issue under Chapter VI, where the UNSC could only recommend actions, not mandate them. And so, for the past 73 years, there exist in the books of the UN resolutions which need the consent of both India and Pakistan to be implemented.

The more relevant example here is of the UN Convention on the Laws of the Seas (UNCLOS). We all know that China lost an arbitration on the status of the South China Sea islands in 2016. This official arbitration body said that the ‘islands’ were merely rocky outcrops on the sea and did not offer any of the several countries who claimed them territorial rights to the waters around them. China ignored the ruling and there is nothing anyone can do short of war to make it dismantle its constructions.

But if China ignores one aspect of the UNCLOS, the US is unique in that it has simply not ratified UNCLOS, though it claims to adhere to it. But this adherence is selective. The US insists that through UNCLOS, it can conduct military exercises in the 200 nautical miles Exclusive Economic Zone (EEZ) of the various countries around the world. That is why when it conducts military activity in China’s EEZ, there are periodic run-ins with the People’s Liberation Army Navy.

The Indian position here is not very different. While China prohibits foreign military activity in its EEZ, India demands that foreign navies notify New Delhi before carrying out exercises; however, the US insists that it will accept neither position. To enforce its ‘rights’, it uses its powerful Navy to carry out periodic ‘Freedom of Navigation Operations’ (FONOPS) in various parts of the world, including the Indian seas.

India is in a peculiar bind here. On the one hand, it is following the US lead in implementing the RBO in relation to the Indo-Pacific, and on the other, we have External Affairs Minister S Jaishankar complaining about western organisations questioning India’s adherence to a rules-based democracy.

In an article last year, former Singapore diplomat Bilahari Kausikan called the RBO a ‘Rashomon term’ — its meaning depending on the perspective of the user. He concluded that it was actually a diplomatic tool ‘rather than a term with an exact or stable meaning’. And its value to diplomacy lay in its ambiguity. As is well known, ambiguity has always been a useful tool.

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