The German National Security Strategy and International Legal Order’s Contested Political Framing

Germany’s newly released National Security Strategy (NSS) has (intentionally or not) entered a contentious global contest over the political framing of international legal order. Germany has long joined its partners and allies in framing commitment to international law in terms of the ‘Rules-Based Order’ (RBO) — which continues with the NSS. Russian and Chinese officials disparage that formulation as derogating from international law, yet have simultaneously promoted the political frame of a ‘multipolar international order’ (MIO) as essential to law’s integrity. The 2023 NSS now adds to these frames with a novel concept of ‘free international order’ (FIO), which sits alongside the RBO, but ostensibly as a more fundamental commitment. The meaning and relationship between these concepts is deeply complex, but their influence attests to the unavoidable nature of political contestation over the ‘selection and salience’ of the values and power structures that define the international legal order.

Rules Based Order vs. Multipolar International Order

The RBO is a notoriously vague concept, which owes much to its origins as a forensic construction of a previously assumed global order—an attempt to fortify structures of hegemonic power and legal principles against current disruptions. International legal scholarship can ascribe at least two meanings to the term, with the most straightforward ‘positivist’ meaning simply denoting the totality of legal and non-legal rules of global governance. In principle this ‘political term’ preserves the distinct character of legal rules, while also recognising their shared functions with non-binding norms and standards. Yet conceptual divisions blur in practice, with the values and preferences of subordinate political rules inevitably influencing the interpretation and operation of law. A second ‘comparative’ meaning has thus emerged, in which the RBO denotes a particularistic conception of international law informed by Western and liberal notions of global governance. Its evident role as a political frame has led John Dugard to pronounce the RBO ‘an alternative regime outside the discipline of international law’.

The specific RBO terminology has in part been an attempt to escape the conspicuously ideological ‘Liberal International Order’ and its associations with American exceptionalism. Yet few outside of the West have been fooled by the distinction, with Russian and Chinese critiques placing the RBO at the centre of what Dugard labels a ‘jurisprudential debate’. Russian Foreign Minister Sergey Lavrov has long recognised the RBO’s role as a political frame, which he attributes as the root cause of a ‘deep crisis’ in the ‘UN-centric system’. China has followed Russia’s rhetorical lead in declaring that the ‘“rules-based international order” championed by the US is in fact another version of power politics’. A February 2022 joint statement between these states declared commitment to ‘the international law-based world order’, which was contrasted with an order based on ‘rules elaborated in private by certain nations or blocs of nations’. Such rhetoric cannot but resonate in the context of historically selective compliance with international law by the US and its Western allies, even as they tout the RBO.

Yet, rather than dispensing with political frames, these opponents of the RBO have promoted an alternative commitment to a ‘multipolar world order’ (MIO), as the claimed foundation for legal integrity. Speaking at the ‘World Online Conference on Multipolarity’, Lavrov endorsed President Vladimir Putin’s statement that the ‘trend towards multipolarity in the world is inevitable’, while ‘Washington and its satellites’ efforts to reverse the course of history and make the international community live according to the “rules-based order” they invented are failing’. Like the RBO, the MIO is an innocuous concept on its face yet, also like the RBO, its true meaning is its use. Any assertion that advocates of the MIO stand for a more politically desirable or even neutral frame for law is decisively contradicted by Russia’s fundamental breaches of territorial integrity in Ukraine and by China’s excessive maritime claims in the South China Sea.

These cases instead reveal the MIO as a framework for spheres of influence, in which power will increasingly dominate the interpretation and operation of international law within regional ‘geolegal orders’. The Russian Government’s 2023 foreign policy concept identifies an exceptional role as ‘one of the sovereign centres of global development performing a historically unique mission aimed at maintaining global balance of power and building a multipolar international system’, which in turn informs the ‘rule of international law’. Lauri Mälksoo has observed that Russia’s self-perception as a ‘country-civilization’ renders even state sovereignty contingent within its sphere of influence, with Ukraine being only the most catastrophic example. What ultimately matters is not differences in terminology but, rather, the common function of political framings, with the RBO and MIO each able to be analysed in comparative terms as particularistic interpretations of international law and associated structures of global power.

Free International Order

This is the fraught debate that the German NSS now enters. The opening lines of the NSS declare its basis in ‘the mission enshrined in the Grundgesetz (Basic Law)’ (the German constitution), to ‘promote world peace in a united Europe’. Yet the more far reaching constitutional framing appears to be in conceptualising that mission as a commitment ‘to shape a free international order’, thereby transposing by analogy the established concept at the heart of the Grundgesetz of a ‘free democratic basic order’ or ‘freiheitliche demokratische Grundordnung’ (‘FDBO’). The German Federal Constitutional Court has interpreted the FDBO as a political commitment prior to and more fundamental than the positive laws of domestic order, holding it to be comprised of minimum necessary elements of human dignity, the principle of democracy and the rule of law.

The parallel political framing of a FIO is defined by the NSS as an order ‘that respects and upholds international law, the Charter of the United Nations, the sovereign equality of states, the prohibition on the threat or use of force, the right of all peoples to self-determination, and universal human rights’. The publicised objective of the NSS is to develop a concept of ‘integrated security’, in the sense of ‘bringing together all issues and instruments that are relevant to protecting ourselves from external threats’. Less obvious is that the NSS’s side-by-side comparison of the FDBO and FIO attempts a form of jurisprudential integration, with domestic frameworks being mirrored on the global plane. Novel questions are raised by such framing, including whether political commitment to a FIO may be prior to the positive international laws that give it effect.

The NSS conception of international legal order has a further parallel with constitutional thinking, with the first of its ‘three dimensions of security’ being that Germany ‘must be wehrhaft (robust) to protect itself and its allies from external violence’. This again mirrors principles in the domestic legal order as identified by the Constitutional Court, which has confirmed the principle of a wehrhafte or ‘fortified’ democracy, meaning that the ‘enemies of the Constitution’ cannot invoke its freedoms to undermine it. Here the FDBO concept is recognised as so elemental that the constitution provides for the forfeiture of certain basic rights, or banning of political parties, if, rather than operating as defining elements of the system, they are instead weaponised to threaten its very survival. Thus, legal means that may appear prima facie undemocratic are nevertheless permitted under the constitution, so long as associated restrictions are deemed proportionate to defending the existence of the FDBO.

The concept of a fortified constitutional system encapsulates the implications for international law of realising Germany’s much touted Zeitenwende (‘turning point’) in foreign policy. German strategic culture has long been defined by ‘military restraint and a commitment to pacifism’, which has correspondingly constrained the tools of statecraft to those remaining within the terms of a peaceful order. As late as 2021, a Federal Government White Paper sought the ‘preservation of peace and security through multilateral institutions and legislative frameworks’, while avoiding questions of how to defend against threats to the order itself. It is telling that access to the document via government websites appears to have been quietly removed, despite the exhaustive internal and public consultations that preceded its publication. In its place the NSS employs the concept of being wehrhaft to justify, among other things, Germany meeting its NATO defence spending commitments of two percent of GDP—to uphold ‘peace and freedom’. The essence of the Zeitenwende is recognition that, although military means appear prima facie inconsistent with the peaceful resolution of disputes, they have become a necessary element of a fortified international legal order. The FIO emerges as the political frame to facilitate those commitments to international law.

Conceptual merits of the FIO notwithstanding, its substance as a political frame for law is unlikely to be ‘more acceptable to a larger group of countries.’ The FIO and RBO (or equivalent terms) appear an equal number of times throughout the NSS (ten each), with commitment to the system as a whole described in terms of the ‘free and rules-based international order’. Doing so reiterates that the positivist meaning of the RBO, as intended by the German government, remains enmeshed with its substantive liberal meanings. The FIO and FDBO both encapsulate precisely the kind of political norms already observed to influence legal norms in the RBO. Those perceptions are further reinforced by convergence between allies, with the most recent G7 Leaders’ Communiqué committing to a ‘free and open international order based on the rule of law’ (although that language likely also transposes more long standing US appeals to a ‘free and open Indo-Pacific’). In short, acknowledging the connections between international law and preferences for democratic and liberal values in the FIO may ultimately have come full circle to reaffirming the ‘Liberal International Order’.

The Inescapability of Political Frames

International legal order’s contested political framing reveals the extent to which current disruptions extend well beyond legal interpretive differences. Disagreement runs deeper, to the very structure of political order necessary to sustain the integrity of international law. The observation that states, or groups of states, advocate political frames for the interpretation and operation of law does not ipso facto demonstrate ‘a disservice to the latter’. Rather, the normative desirability of international law instead depends on its substantive qualities, such as the extent to which any political frame promotes accountable and non-self-judging constraints on powerful and weak states alike. With the very boundaries between the legal and political orders at stake, the frontiers of international law will only continue to be contested through political frames–whether ‘rules-based’, ‘multipolar’ or ‘free’.