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Where is the rules-based order going? | Kuensel online

Every day we are told to defend the rules-based order. But whose order? What rules? Why should we defend an order if we had no say in shaping it?

All this is in the realm of politics and geopolitics. The greatest thinker who shaped the current neoliberal order was the Austrian philosopher Friedrich Hayek (1899-1992), whose classical liberalism ideas of freedom, democracy and the self-ordering 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 the Keynesian state intervention of the 1950s-1970s.

The most profound thinker on the whole question of constitutional law, politics, and the international order was the German jurist Carl Schmitt (1888-1985), whose influence in conservative political circles in nearly every major power n stopped 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 explains his ostracism (in today’s parlance “cancelled”) from academic circles for decades.

Schmitt was a brutal realist thinker who explored the legal foundations of European political theory. Schmitt argues that no order can function without sovereign authority. A state is legally constituted when politics distinguishes between friend and foe and when citizens are willing to fight and die for its identity. Only the state is endowed with the power of violence (and enforcement) by citizens to enforce the law.

Schmitt is considered an authoritarian proponent, as he viewed sovereign power as ultimately resting with the executive (rather than the legislature or judiciary) because the sovereign (i.e. the president) decides to the exceptional situation, where he has to suspend the law because of the war. or assume emergency powers in order to restore order. Executive decisions are either bound by law or bound by its moral guidelines.

The world is watching on television today whether former President Trump is morally guilty of causing the riots on January 6, 2021, or legally guilty. The war in Ukraine is supported by NATO on a matter of moral principle for a non-member, but if the war escalates into nuclear global destruction that kills everyone, how can we trade individual rights with collective right of all the others to survive?

Schmitt dissected European constitutional laws and the international order, dividing them into three phases: before 1500, 1648 to 1919 (World War I) and after. Before the discovery of America, the European powers fought each other under a religious mantle, since the pope decided on conflicting rights for moral reasons. Indeed, it was the papal bulls of 1455 and 1493 that authorized the Portuguese and Spaniards to conquer all lands and to seize and enslave Saracens and non-Christians in the Americas, Africa and Asia. Religious justifications included the dominion code by which Christians can rule over non-Christians and own their property, as well as the discovery code, by which land owned by non-believers is treated as terra nullius (empty lands ), that is, non-Christian indigenous peoples. have no rights.

But when the Dutch and the English started to fight with the Portuguese and the Spanish over the overseas territories, what was the legal justification? The Dutch jurist Grotius (1583-1645) provided the secular justification that discovery alone is not enough, but since there was freedom in the seas, occupation by a sovereign state confirms rights seized by war. Schmitt argued that Jus Publicum Europaeum (European public law) arose after the 1648 Treaty of Westphalia to allow sovereign countries to have the right to go to war based on their own judgment of justice and necessity without interference in the internal affairs of the other. This changed after the end of World War I, when the 1919 Treaty of Versailles treated the losers as criminals, with their rights canceled or confiscated.

As the Europeans actively clashed, the United States rose to global power and imposed its Monroe Doctrine of 1823 which asserted that it had its own sphere of influence, with the right to intervene in Central American states. and the South. This sphere of influence would spatially cover cultural, economic, military, political and today technological exclusivity beyond sovereign legal borders.

Schmitt was prescient in seeing that where war is fought on the basis of “good versus evil”, in which all rights on the other side are “cancelled” (such as the currency holdings of Afghanistan and the Russia are frozen or seized), the situation may be an unstable balance. Europe’s unstable security architecture was decisively settled by the United States in two world wars due to its overwhelming military, economic and industrial power. But in today’s multipolar situation, who decides the rules of the international order? If both parties accuse the other of being bad and illegitimate, who decides other than the use of arms?

To sum up a complex story, the NATO military alliance, which comprises almost a billion people and 47.3% of the world’s GDP (2020), assumes its status quo role as the final arbiter of ” rule-based order”. The problem is that the BRICS countries, plus Indonesia, have 3.5 billion inhabitants with a quarter of the world’s GDP in market terms (25.6%). However, in PPP terms of GDP, they are close to parity with NATO and can therefore have their own view of the international order. What if major non-Western countries wanted their own version of the Monroe Doctrine?

The moral principle that we should all live in peace on one planet should trump sovereign nations vying for power and egos from territory to space when humanity could be scorched by global warming climate change or nuclear war. For Nomos (or order) of the Planet, rather than the Earth, we should all cooperate rationally. If we really believe in democracy, can the world’s eight billion people vote under the rules-based order, or do we still have to let the G-7 deal with it?

No order is stable without genuine legitimacy based on democratic principles. How to achieve this order remains a really open question.

Contributed by

Andrew Sheng

Asia News Network