On May 3, 2021, when the US secretary of state, Antony Blinken, was interviewed by 60 Minutes, he said, “Our purpose is not to contain China, to hold it back, to keep it down. It is to uphold the rules-based order that China is posing a threat to.”
Then, on May 26, 2022, he followed this up by saying the US would not block China from growing its economy, but wanted it to adhere to international rules.
And when, on Jan 11, 2023, Blinken praised Japan for agreeing to double its defence spending by 2027, he deprecated threats to the “international rules-based order”.
Taking their cue from the US, the likes of Liz Truss in the UK, Scott Morrison in Australia, Fumio Kishida in Japan, and Jens Stoltenberg in Belgium (NATO) eagerly regurgitate similar soundbites.
Although Blinken and his acolytes rarely explain what exactly they mean, they may have in mind the shared commitment of countries to conduct their activities on the basis of established rules. If so, this involves upholding freely entered-into agreements, respecting legal norms, and avoiding arbitrary decisions, the very areas in which the US has let everybody down, allies included.
After Iran, for example, following intense negotiations with seven countries, including the US, entered into a landmark nuclear agreement in 2015 (the Joint Comprehensive Plan of Action, or JCPOA), by which it agreed to restrict its nuclear program, the US arbitrarily withdrew from it in 2018. Although Iran had acted in good faith throughout and complied with the JCPOA, the US simply walked away from it for no good reason (beyond keeping Israel happy), leaving its partners in the lurch, and slapping over 1,000 sanctions on Teheran.
In 2022, moreover, when the US, after a change of heart, sought to revive the JCPOA, it had the gall to criticise Teheran for creating obstacles. Iran would, of course, have been fully entitled to refuse to negotiate at all, given that the US had unilaterally broken the agreement, but it magnanimously returned to the negotiating table.
When a country like the US lets down its treaty partners so egregiously like this, its moral authority vanishes, and it is in no position to preach to others about adhering to international rules.
It is, however, fortunate that those who violate the global rules sometimes have to face the music, as the US recently discovered. In 2016, Teheran brought a case against Washington in the International Court of Justice (ICJ), also known as the World Court, for breaching a 1955 friendship treaty by allowing US courts to freeze the assets of Iranian companies. Although Iran denied supporting international terrorism, the US arbitrarily decided to hand its companies’ sequestered money to the victims of terrorist attacks.
On March 30, 2023, the ICJ decided that Washington had illegally allowed its courts to freeze the assets of Iranian companies, and ordered it to pay compensation. The presiding judge, Kirill Gevorgian, said, “The court has concluded the US violated its obligations under … the treaty of amity,” and that, if the parties could not decide on the amount of the compensation to Iran within 24 months, the court itself would determine the sum. Although the ICJ’s rulings are binding, they cannot be enforced, and observers fear that, notwithstanding its advocacy of the “rules-based order”, the US will simply ignore the judgment.
After all, the US contempt for the global rule of law is notorious, as the chief prosecutor of the International Criminal Court (ICC), Fatou Bensouda, discovered in 2020. After the ICC, operating under its United Nations mandate, began an investigation into whether American military personnel and CIA operatives had committed war crimes and crimes against humanity in Afghanistan, the then-US president, Donald Trump, issued an executive order imposing sanctions on the ICC’s investigators.
Thereafter, Bensouda, and her deputy, Phakiso Mochochoko, were classified as “specially designated nationals,” alongside terrorists and drug traffickers. In consequence, their assets were blocked, they and their families were denied US visas, and American citizens were prohibited from having any dealings with them.
Although the then-US secretary of state, Mike Pompeo, claimed that the ICC “continues to target Americans”, and that Bensouda was “materially assisting” its efforts, the enormity of what his government was doing was lost upon him, the “rules-based order” notwithstanding. It was, therefore, left to others to place the outrage in context, albeit to no avail.
Although, for example, Human Rights Watch’s international justice director, Richard Dicker, said it “marks a stunning perversion of US sanctions, devised to penalise rights abusers and kleptocrats, to persecute those tasked with prosecuting international crimes”, this was water off a duck’s back.
When the French government condemned the “serious attack” on the ICC, and called for the sanctions to be lifted, the US refused to listen, meaning that nothing could be done to redress what the ICC called an assault on “the rule of law more generally”.
Although, once Trump left office, the US revoked the sanctions on the two prosecutors in 2021, Antony Blinken nonetheless made clear that the US continued to “disagree strongly” with the ICC’s investigation. This was shocking, given that the investigators were seeking, in the interests of global justice, to determine if the gravest possible crimes had occurred in Afghanistan (and, if they had, to hold the culprits to account).
One day, perhaps, Blinken will explain how he squares his opposition to the investigation of alleged atrocities in Afghanistan with his professed belief in the “rules-based order,” although nobody should hold their breath.
On Jan 1, 1995, the World Trade Organisation (WTO) was established, with a mandate to manage and enforce the rules of international trade. Although the US was a founding member, it simply disregards any rulings it dislikes. The WTO recently declared that the US violated global trading rules by requiring that goods imported from Hong Kong be labeled as “Made in China,” even though Hong Kong is a separate WTO member. It also separately ruled that the tariffs the US has imposed on steel and aluminium from China, Norway, Switzerland and Türkiye contravened the rules.
However, despite its advocacy of the “rules-based order,” the US has denounced both of the WTO’s judgments, and refused to recognise them. It clearly thinks it is not bound by the rules that govern lesser countries, and it has set a dreadful example to everybody who believes that those who join international organisations should respect their rulings.
In a further affront to the legal order, the US has appealed against both of the rulings to the WTO’s Appellate Body, knowing this will have the effect of freezing them. This is because, although the tribunal is supposed to comprise seven judges who consider appeals in disputes brought by WTO members, it currently has no members at all, meaning appeals cannot be processed. This has come about as a result of a calculated US decision to block the appointment of any new judges on the pretext it wants an overhaul of the WTO.
This, however, is a smokescreen, and, given its arbitrary trade practices, the US wants to castrate the WTO, which should surprise nobody. In January, it was reported that, since 2001, when China joined the WTO, 28.4 percent of complaints lodged by member states have targeted the US, compared to 12.2 percent for China. This is highly embarrassing for the US, which holds itself out as the exemplar of free trade and globalisation. This is why, as a bully boy, it is shamelessly abusing the WTO’s processes, knowing it cannot be held to account.
Although the likes of Truss, Morrison, Kishida and Stoltenberg may be willing to disregard US rule-breaking, those leaders who disapprove of double standards and believe that the great powers should set an example to others will be appalled, and must call Washington out.
Whenever, moreover, Blinken pontificates about the “rules-based order,” everybody should reach for their sick bags. The US is a serial rules-abuser, and its hypocrisy knows no bounds. Indeed, the next time Blinken holds forth about his “rules,” people should remember Ferdinand Barnacle, the Charles Dickens character, who, in Little Dorrit, said, “We must have humbug, we all like humbug, we couldn’t get on without humbug.”
First published in CHINA DAILY HK EDITION April 19, 2023
Grenville Cross is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.