China Watch Vol. 3, No. 27, October 2023
Multilateralism and the International Rule of Law
Liao Fan
Liao Fan is Deputy Director and Researcher of the International Cooperation Bureau of the Chinese Academy of Social Sciences, and Professor of the Law School of the University of the Chinese Academy of Social Sciences.
Abstract
Multilateralism places great emphasis on its breadth and inclusiveness, and serves as a fundamental and dominant institutional arrangement and value in the current international system. International law is the universal discourse of the international community, and multilateralism is a strong support for such universality: on the one hand, it adds to the incentives and motivation for states to comply with international law, promoting the unification of the international legal rules; on the other hand, it provides the international legal rules with the necessary moral force, shaping the value orientation of the international rule of law. The international law-based international order is an integral part of genuine multilateralism, while the so-called “rules-based international order” reflects, to a large extent, a selective multilateralism. True multilateralism is the achievement of the development of human civilization, transcending and reforming the law of the jungle, hegemony and power politics, which opens up a new realm in the theory and practice of global governance. The international rule of law should be guided by true multilateralism to safeguard an open multilateral system with the United Nations at its core, to defend the authority and unity of international law, to provide more institutional public goods to the international community on the basis of consultation and cooperation, and to promote the building of a global community of shared future for mankind through the reform and improvement of global governance.
- The Basic Meanings and Concepts of Multilateralism: An Analysis
The term “multilateralism” generally has three meanings: first, it expresses the diplomatic behavior orientation or foreign strategy of a sovereign country, which is the so-called “functional multilateralism”; second, it refers to a way of international interaction within a given framework, which is so-called “institutional multilateralism”; third, it describes a concept of diplomacy and international behavior, which can be called “ideal multilateralism.” To date, a relatively authoritative definition of multilateralism in mainstream Western academic circles has come from John Ruggie, and that is, multilateralism is “an institutional form which coordinates relations among three or more states on the basis of ‘generalized’ principles of conduct: that is, principles, which specify appropriate conduct for a class of actions, without regard to the particularistic interests of the parties or the strategic exigencies that may exist in any specific occurrence”. This definition focuses on the second meaning mentioned above, that is, multilateralism in an institutional framework.
The stance and attitude toward existing international institutions and rules is a core feature that distinguishes multilateralism from unilateralism. An institution is a democratic arrangement jointly constructed by multiple actors through consultation and negotiation. Once formed, participating countries must obey its regulations while benefiting from the system. Regardless of the specific considerations of an individual country, and regardless of whether it obtains the reciprocity it expects at a particular moment or on a particular issue, a country’s interests and will should be subordinated to the common interests and will of the international community embodied in international institutions and rules. Unilateralism, by contrast, tends to emphasize one country’s particularity and priority and its domestic laws, requiring special interests to be protected and domestic rules to be applied first, and even adopting an opportunistic attitude toward international rules of “using them if they are compatible and discarding them if they are not.” In the final analysis, unilateralism is based on power and strength, while multilateralism is based on institutions and rules based on consensus.
If the contrast between unilateralism and multilateralism involves how to deal with the relationship between the individual and the collective, then the contrast between bilateralism, regionalism, minilateralism, and multilateralism involves how to deal with the relationship between the parts and the whole. Multilateralism embodies a specific belief and preference, i.e., other things being equal, problems at hand are better solved by broader and more inclusive mechanisms, and so we should include, involve, and gain the aggrement of as many countries as possible, to solve global problems or produce global benefits. In a certain sense, one can say that multilateralism and unilateralism represent two kinds of value objectives, deserving either to be pursued or abandoned, while bilateralism, regionalism, and minilateralism are more neutral and have no absolute good or bad in themselves—it all depends on what their starting points are and the purposes and effects they want to achieve.
- The International Rule of Law from the Perspective of Multilateralism
International law is the main and most important code of conduct in today’s international society, and it is also the universal discourse system in the international community. Although “international rule of law” cannot be simply equated with the “rule of international law,” international law undoubtedly plays a fundamental and critical role in the construction and realization of the international rule of law. The international rule of law means that international law should guide the behavior of states and is the final arbiter of states’ exercise of power. States must abide by the provisions of international law.
Since their inception, modern international relations and international law have been inseparable from and complementary to multilateralism and multilateral systems. Sovereign equality is the most important criterion for regulating relations among states. The need to maintain and promote interactions among states in an anarchic society determines that order is the primary value of international law. Since there is no “world government” that overrides states, the international community, in terms of stability and certainty, is more fragile and vulnerable to destruction than domestic society, so it is in even greater need of international law in order to shape, provide, and maintain order. In the absence of supranational rule makers and order defenders, it is crucial to achieve this kind of stability and predictability by involving as many countries as possible, and in the widest possible scope, in the formation of rules and the construction of order.
Generally speaking, the international rule of law is developed and presented through the value shaping of international law, the creation of international legal norms, and the implementation of international law. As for the implementation of international law, in the absence of supranational law enforcers, individual or collective actions authorized by relevant countries through multilateral mechanisms are the basic way of enforcing international law. As for the creation of international legal norms, multilateralism helps promote the unification of international law. And as for value shaping of international law, multilateralism can provide irreplaceable legitimacy and moral power for the international rule of law. The legitimacy and moral power carried by relevant international rules can restrict and balance a country’s natural tendency to pursue self-interest and even influence and shape the perception of “the national interest,” that is, “construct” national interests. In short, international law should be the “lingua franca” of the international community, and multilateralism is a strong support for this universality.
- “Rules-based International Order” and Selective Multilateralism
International law is a set of rules formed through specific procedures or methods that reflect the general consensus or broad agreement of the international community. It has a generally clear and generally accepted meaning. However, the specific meaning of “rules” in the “rules-based international order” is unclear. As the originator of the term, the United States intentionally does not clarify either the connotation, denotation, or nature of the “rules” or the relationship between different rules, so that it can more easily select, circumvent, rewrite, or abuse specific rules as needed. At the same time, the so-called “rules” here deliberately weaken “state consent,” an essential element of international legal rules, thereby instituting a basis for its belittling the authority and effectiveness of current international law, breaking away from the constraints of the current international law, especially universal international law, and advancing for formulating its own “rules” that are in line with its national interests. Using the slogan of the “rules-based international order,” the United States often puts domestic legal rules over international legal rules and erodes the latter with minilateral rules, thus posing severe challenges to multilateralism and the international rule of law.
The term “rules-based international order” and its use highlight American-style selective multilateralism. The United States was once an important advocate of multilateralism, but its support for multilateralism was mainly driven by core national interests rather than an advocacy of norms, and it had a strongly practical and instrumental flavor. From this come the common double standards of the United States in international affairs, which is based on what is known as “American exceptionalism”. On the one hand, it requires other countries to abide by international legal rules advocated by the United States, and on the other hand, it refuses to abide by rules that are unfavorable to it or incompatible with the kind of rules that it has in mind. This sort of instrumentalist and opportunistic approach of “using [the rules] if they are compatible and discarding them if they are not” is not true multilateralism, but selective multilateralism, which is essentially unilateralism.
- Guiding the International Rule of Law with True Multilateralism
(1) Maintain an open multilateral system with the United Nations at its core.
Openness and inclusiveness are the essence of true multilateralism, and they also mark the continental divide between it and selective multilateralism. As far as the specific number of “latera” is concerned, multilateralism is a relative rather than an absolute concept, but openness is consistently a core idea as well as a value to be pursued. Inclusiveness, meanwhile, means that the construct of international order and the formulation of international rules must be able to accommodate and tolerate differences, whether they are differences of development stage, social system, or ideology. The United Nations is the most representative multilateral institution in the world today, and maintaining its core, authoritative status in the international system is an integral part of practicing true multilateralism. One of the United Nations’ greatest achievements since its establishment has been to provide the international community with a global international law system covering many international issues and to establish a core treaty system to protect everyone’s inherent freedom, equality, and dignity. It stipulates the legal obligations that each state party shall assume, regulates state behavior in the global commons, and enriches the contemporary international legal order with the UN Charter as the cornerstone. Maintaining the international system with the United Nations as its core is inherently consistent with maintaining the international order based on international law.
(2) Defend the authority and unity of international law.
The authority of international law ultimately comes from the compliance of states, the basic subjects of international law. The “promise-based” nature of international law, on the one hand, means that any unilateral imposition of “rules” beyond a country’s commitments lacks value legitimacy and operational reality, and on the other hand, it highlights the extreme importance of countries “honoring their promises” and fulfilling their obligations under international law in good faith. For a country to follow or reject international laws based on whether they are consistent with its interests or domestic rules is a kind of unilateral behavior that is bound to seriously damage the authority and effectiveness of international law. Likewise, minilateral rules should not be used to erode or nullify multilateral ones. Using so-called “rules-based international order” to replace universally recognized principles and norms of international law is unacceptable.
(3) Provide more institutional public goods to the international community on the basis of consultation and cooperation.
In the post-hegemonic era, no country has the ability to soly determine the rules for the world and support the effective operation of international systems. The pluralistic situation of international society is such that international society does not accept the legitimacy of any single country dominating international affairs. Multilateralism and pluralistic co-governance are the inevitable choice. This objectively requires all countries in the world to abandon hegemony, confrontation, and “zero-sum” thinking and choose the path of consultation, dialogue, and win-win situations. The Belt and Road Initiative, which upholds the principle of extensive consultation, joint contribution, and shared benefits, is a model of consultation and cooperation at the multilateral level and has become the most extensive and largest international cooperation platform in the world today. In the current situation, in which global governance is facing a lack of international public goods, and international institutions and international legal rules are needed to help overcome governance failures and promote the provision of public goods, the Belt and Road Initiative, as a public good provided to the international community by China based on its status as a responsible major country, is of great value in terms of bridging the gap in the supply of international public goods. In the future, from the international rule of law perspective, while continuing to adhere to the multilateralist stance of extensive consultation, joint contribution, and shared benefits, we should promote increased formalization, institutionalization, and enhanced legal governance in the joint construction of the “Belt and Road,” in order to make it into a more easily expandable and sustainable international cooperation platform.
(4) Reform and improve global governance and promote the building of a global community of shared future.
Upholding fundamental principles and breaking new ground are inherent requirements for reforming and improving global governance under the guidance of multilateralism. “Fundamental principles” refer to the core values and basic principles of multilateralism. In sum, the core value of multilateralism is to provide support for the legitimacy of the international order, a key belief is that broader and more inclusive mechanisms can better solve common global problems, and the basic principles are openness, inclusiveness, equality, democracy, consultation and cooperation, and keeping pace with the times. “New ground” means, while adhering to the just-mentioned core values, key beliefs, and basic principles, in the face of the world’s changes unseen in a century, accurately identifying those changes, responding to them scientifically, proactively seeking change, participating in and even taking a lead in the reform of global and regional rules, institutions, and mechanisms, and promoting the development of global governance in a fairer and more reasonable direction.
Translated by Thomas E. Smith