Published: 26 June 2023 Author: Stefan Talmon
On 14 June 2023, Federal Chancellor Olaf Scholz and members of his cabinet unveiled Germany’s first ever National Security Strategy (NSS), entitled ‘Robust. Resilient. Sustainable. Integrated Security for Germany’. The 73-page document outlined the Federal Government’s approach to guaranteeing the country’s security and strengthening it against external threats. The NSS contained twenty-three references to ‘international law’, which was employed fourteen times in connection with ‘free international order’ or just ‘international order’. The ‘free international order’ thus emerged as a key novel concept of the new Strategy.
Germany had previously championed the term ‘rules-based international order’. While this term was still used six times, it seemed to have competition from the ‘free international order’. In the German version of the NSS, the concept of the ‘free international order’ appeared thirteen times, including once in the combination ‘free and rules-based international order’. For example, the NSS read:
Our foreign and security policy is committed to a free international order based on international law and the Charter of the United Nations.[W]e want to shape a free international order that respects and upholds international law and the United Nations Charter, the sovereign equality of states and the prohibition on the threat and use of force, as well as the right of all peoples to self-determination and universal human rights, with a view to ensuring a sustainable future in security and freedom.
We are committed to upholding a free international order based on the Charter of the United
Nations, universal human rights and international law. We actively support multilateralism
and the strengthening of the United Nations. We counter attempts to divide the world into
spheres of influence by promoting the positive model of such a rules-based order.
We set out these interests on the firm foundation of our values: … promoting a free international order based on international law, the United Nations Charter and universal human rights.
The Federal Government will deepen its cooperation with all countries that support a free international order based on the United Nations Charter and international law.
The Federal Government advocates the strengthening and further development of a free international order based on international law and the United Nations Charter. Such a rules-based order creates stability and the conditions for peace, security and human development. It also provides our open and interconnected country with protection and scope for development.
We confidently embrace competition with states that are opposed to a free international order based on international law and the United Nations Charter. We take the consequences of systemic rivalry seriously and take them into account in our policymaking.
We resolutely defend the free and rules-based international order, which protects our values and interests…. We consciously endeavour to cooperate … with countries … that, like us, are committed to a free international order based on the United Nations Charter and international law.
In the EU and together with our transatlantic and global partners we are countering attempts to establish spheres of influence with the positive model of a free international order based on international law.
The Federal Government is working to intensify its relations with global partners in the long term and is entering into new partnerships with countries which, like us, are committed to a free international order based on the United Nations Charter and international law.
The concept of a ‘free international order’ is new to German foreign and security policy. The only previous reference to the term can be found in a speech by Federal Foreign Minister Guido Westerwelle in June 2013, when he said:
Shaping globalization intelligently is therefore one of the core tasks of German and European foreign policy today. A free international order based on firm rules is a basic prerequisite if we are to continue enhancing peace and prosperity.
The concept as employed in the German NSS may be traced back to the ‘United States Strategic Approach to the People’s Republic of China’, a report published by the administration of US President Donald Trump on 20 May 2020 in accordance with the FY2019 National Defence Authorisation Act. According to that document, for ‘the past seven decades, the free and open international order has provided the stability to allow sovereign, independent states to flourish and contribute to unprecedented global economic growth.’ The United States accused the People’s Republic of China (PRC) of attempting to weaken the ‘free, open and rules-based international order’ and seeking to transform that order to align with Chinese Communist Party interests and ideology.
In November 2020, the Policy Planning Staff in the Office of the US Secretary of State published a document, entitled ‘The Elements of the China Challenge’, which identified China as a threat to the ‘free, open, and rules-based international order’. The document read in part:
[T]he United States must fortify the free, open, and rules-based international order that it led in creating after World War II, which is composed of sovereign nation-states and based on respect for human rights and fidelity to the rule of law. …
The PRC wants to convince European nations that their political future lies not in the free, open, and rules-based international order, but in a new multipolar arrangement that respects geopolitical spheres of influence and regards allegations of internal repression as infringements on national sovereignty.
In its National Security Strategy of 12 October 2022, the United States then proclaimed the battle for the international order. In his introduction to the new Strategy, US President Joseph Biden wrote: ‘We are in the midst of a strategic competition to shape the future of the international order.’ The document read in part:
Our goal is clear—we want a free, open, prosperous, and secure international order. We seek an order that is free in that it allows people to enjoy their basic, universal rights and freedoms. It is open in that it provides all nations that sign up to these principles an opportunity to participate in, and have a role in shaping, the rules. It is prosperous in that it empowers all nations to continually raise the standard of living for their citizens. And secure, in that it is free from aggression, coercion and intimidation. … [W]e must proactively shape the international order in line with our interests and values. …
The PRC is the only competitor with both the intent to reshape the international order and, increasingly, the economic, diplomatic, military, and technological power to do it.
We are confident that the United States, alongside our allies and partners, is positioned to succeed in our pursuit of a free, open, prosperous, and secure global order. With the key elements outlined in this strategy, we will tackle the twin challenges of our time: out-competing our rivals to shape the international order while tackling shared challenges ….
In December 2022, Japan became the first country to follow the United States in its assessment of the challenges to the existing international order. In its National Security Strategy, Japan pledged to maintain and develop ‘a free and open international order based on the rule of law’ as one of its strategic aims. This was followed in April 2023 by the Foreign Ministers of the Group of Seven States (G7) reaffirming their commitment ‘to uphold and reinforce the free and open international order based on the rule of law, respecting the United Nations (UN) Charter.’
In its NSS, Germany – like the United States and Japan – identified ‘systemic rival’ China as the main challenger to a free international order based on international law, the Charter of the United Nations and universal human rights. The document read in the relevant part:
We are living in an era that is increasingly multipolar and marked by rising systemic rivalry. Like us, the overwhelming majority of states are committed to the United Nations Charter and a free international order based on international law. However, as a result of their perception of systemic rivalry, some states seek to undermine this order and give effect to their revisionist notions of spheres of influence. They view human rights, civil liberties and democratic participation as a threat to their power. …
China is a partner, competitor and systemic rival. We have observed that rivalry and competition have increased in the past years. China is trying in various ways to remould the existing rules-based international order, is asserting a regionally dominant position with ever more vigour, acting time and again counter to our interests and values.
China objected to Germany’s assessment. Commenting on the NSS, the spokesperson for the Chinese Foreign Ministry stated on 15 June 2023 that ‘China has always been a force for world peace, a contributor to global development, and a defender of the international order.’
Germany did not define what it meant by a ‘free international order’. The term ‘international order’ describes the normative and institutional framework for relations between international actors and, in particular, between States. The term ‘international order’ as such is therefore neutral: it accommodates coordination, cooperation and confrontation. It allows for equality, hegemony and supremacy. By adding the adjective ‘free’ to ‘international order’, Germany loads the term with certain values. A ‘free international order’ could be understood as an order that enables and promotes political and economic freedoms. Such an order would be characterised, inter alia, by human rights, the rule of law, and free trade. The concept of a ‘free international order’ could be seen as a counter-model to an authoritarian or illiberal model of international order, or an order that is based on one-sided economic dependencies. Thus, Germany contrasts ‘the positive model of a free international order’ with an order based on ‘spheres of influence’. However, some may question whether the current Western-dominated international order that Germany vows to uphold and defend is actually ‘free’, having its roots in colonialism, (hot and cold) war, plunder of natural resources, unequal development and unfair trade practices.
By linking the value-laden concept ‘free international order’ with international law and the Charter of the United Nations, Germany gave the impression that alternative models of international order would be contrary to international law and the UN Charter. However, international law and the UN Charter are ‘based on a multitude of value systems’ and do not provide for any particular model of international order and, in particular, do not rule out spheres of influence. Some may even argue that the United States, through the North Atlantic Treaty Organization (NATO) and other security pacts, has established its own sphere of influence. Spheres of influence are usually the result of political, military, economic or other dependencies, rather than legal institutional arrangements. To the extent that they are based on treaties and alliances they are covered by States’ freedom of action. As the International Court of Justice (ICJ) pointed out in the Nicaragua case, ‘by the principle of State sovereignty, every State is permitted to decide freely on its political, economic, social and cultural system, and the formulation of its foreign policy.’ The external policies and alliances of States and the impact of alliances on regional or international politico-military balances are generally of no concern to international law. The United Nations Charter was precisely designed to accommodate relations among States having different political, economic and social systems on the basis of coexistence among their various ideologies.
The question of the future international order is, therefore, first and foremost a political question – a question of power, interests and values. The United States was quite open about that. In its 2022 NSS, it declared that ‘we must proactively shape the international order in line with our interests and values’, and in its 2017 NSS it accused Russia and China of ‘contesting our geopolitical advantages and trying to change the international order in their favor.’ Germany also declared that it wants ‘to shape a free international order’ which ‘protects our values and interests’.
However, while it seems to be alright for Germany and its allies to ‘shape’ and ‘uphold’ the unipolar Western-dominated international order that serves its interests, any attempts by China and other States to ‘reshape’ the current international order in line with their interests are portrayed as being contrary to international law and the UN Charter. Indeed, Germany conflated its interests with the international order, despite recognising that its interests were ‘shaped by our geographical location, our membership of the European Union and NATO, our outward-looking and internationally integrated social market economy and our responsibility for our natural resources.’ Germany also implicitly accused China of abusing its economic position to reshape the international order, saying that ‘some states are increasingly putting the principles of free economic cooperation at risk and use their economic clout to advance their foreign and security policy agendas.’ On the other hand, the United States had no problem stating that ‘[r]etaining our position as the world’s preeminent economic actor strengthens our ability to use the tools of economic diplomacy for the good of Americans and others’. There seem to be double standards and hypocrisy at work here.
It becomes clear from Germany’s NSS that the question of the (future) international order has become one of the new battlefields of the systemic rivals. By linking the political question of the preferred model of international order to international law and the UN Charter, Germany has done a disservice to the latter. In the end, all sides will claim that their model of the international order is based on, or underpinned by, international law.
Category: International Law in General