The Rule of the Lawless

by Chris Patten Chris Patten, the last British Governor of Hong Kong and a former EU commissioner for external affairs, is Chancellor of the University of Oxford. 23.02.2015

CAIRO – In one of his last essays, the late, great historian Tony Judt asked what we should have learned from the last century, a period in which so many soldiers and civilians died in conflict. One important part of the answer, I think, is the critical importance of the rule of law, both domestically and internationally.

To be sure, there are many other things that are crucial to the good life in peaceful, open societies: freedom of speech, religion, and association, and the power to choose – and remove – your own government. But nothing guarantees free societies’ liberties as much as the application of the rule of law with equal force to the governed and the governing.

When I was a British cabinet minister and chairman of the Conservative Party, I had a legal adviser who was aptly named Mr. Maybe. When I was taken to task for some infringement of administrative law or alleged excessive use of my legal powers, he would never be able to tell me how the courts would ultimately rule. “Will we win this case?” I’d ask Mr. Maybe. His reply was always conditional. “You should win,” he once said. “But I cannot promise that you will.”

Authoritarian governments find this a difficult concept to understand. I recall negotiations with my Chinese counterpart when I was Governor of Hong Kong. I was attempting to explain why the rule of law mattered so much to the territory’s future, and I noted that when I was in the British government, the law applied to me just as much as to those I helped govern.

My interlocutor thought I was joking. What the Chinese practice is rule by law – the law as defined by the Communist Party to its own advantage.

Consider China’s ongoing anti-corruption campaign, for example. It is plainly being used by President Xi Jinping and his ally in the Politburo, Wang Qishan, as a tool to target not just the corrupt, but those who are not part of Xi’s faction of red princelings. In Xi’s hands, the law is an instrument for securing his political objectives.

Likewise, in Russia, President Vladimir Putin rules a state apparatus designed and run by elements of the country’s old intelligence services and its new mafia. The law is used to reward the regime’s cronies and to penalize its critics, such as the businessman Mikhail Khodorkovsky and the activist Alexei Navalny.

Because neither Russia nor China apply the rule of law at home, it is unsurprising that they do not recognize its value in international affairs. Indeed, Putin has breached one of the most fundamental principles of international law: that national borders may not be changed by force. Indeed, he has made it a regular feature of Russian foreign policy, which is characterized by deceit, bullying, violence, and the desire to restore the empire that was dismembered after the collapse of communism.

Long before Russia’s armed annexation of Crimea and its invasion of eastern Ukraine, the Kremlin played similar games when it engineered the secession of Georgia’s South Ossetia and Abkhazia regions and propped up the bandit territory of Transnistria in Moldova. And, given such blatant disregard for the international order, it is no surprise that Putin’s agents have been implicated in the murder of at least one opponent on the streets of London.

Building on the Geneva Conventions on the laws of war and similar binding agreements, global rules were first institutionalized with the establishment of the United Nations. But, above all, the international framework for managing global affairs was the creation of the United States.

What was remarkable about this framework was that its principal author, the major superpower of the day, accepted its authority. As US President Harry Truman memorably put it, “We all have to recognize – no matter how great our strength – that we must deny ourselves the license to do always as we please.”

In times when the international system has been under assault, only America has had the standing to provide renewed credibility to the rule of law. Unfortunately, this may no longer be the case. During President George W. Bush’s administration, the US was willfully destructive of its global interests when it disregarded international law on issues like torture. Those US politicians who regard international institutions as anti-American conspiracies are continuing the harm, costing their country much of its moral authority.

The picture is no brighter in Europe, where countries’ willful neglect of their military capabilities has undermined their ability to enforce the rule of law when international mechanisms break down. The UN Security Council, meanwhile, has become ineffectual, stymied by the great-power interests of China and Russia. So it does nothing, even as Europe’s borders are challenged, Ukrainian citizens are bombed in their homes by Russian troops, and a violent, bandit army ravages the greater Middle East, from the beaches of Libya to the borders of Iran.

After the massacres in Rwanda and Bosnia in the 1990s, world leaders once again solemnly declared, “Never again.” Today, Syrian, Iraqi, and now Egyptian citizens must be wondering what happened to that pledge.

In short, the growing, bloody challenges of the twenty-first century are to be confronted by a toothless UN, a morally weakened US, and a Europe well on the path toward disarmament. If that prospect worries you, it should. In the absence of a change of heart by our political leaders, the power of prayer may be our only recourse.

Copyright: Project Syndicate, 2015.
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