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US diplomacy of re-engagement continues: From ‘intent’ to withdrawal from Paris Agreement to ‘COP23’

Abhishek Trivedi

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In a major setback decision taken by Trump administration on June 1, 2017, showing his intention to withdraw in future from the Paris accord has diplomatically pushed the world community one step back in climate negotiation regime as almost all major players in climate regime have registered their disappointment with this decision. Joint statement by France, Germany,and Italy says the deal can not be renegotiated, while other countries reaffirm commitment to carbon reduction. China sees the USA withdrawal as an unfortunate development, and implications of it will be global. In the words of UN Secretary-General that “The decision by the United States to withdraw from the Paris Agreement on climate change is a major disappointment for global efforts to reduce greenhouse gas emissions and promote global security.” However, Secretary-General has shown his confidence in the US including cities, states,and businesses within the US that will continue to demonstrate vision and leadership by working for the low-carbon, resilient economic growth that will create quality jobs and markets for21st-century prosperity.The Secretary-General also looks forward to engaging with the American government and all actors in the United States and around the world to build the sustainable future.

The letter sent to UN Secretary-General Antonio Guterres by the US representative to the UN Nikki Haley reads as:

“The is to inform the Secretary-General, in connection with the Paris Agreement, adopted on December 12, 2015 (“the Agreement”), that the United States intends to exercise its right to withdraw from the Agreement. Unless the US identifies suitable terms for reengagement, the US will submit to the Secretary-General, in accordance with Article 28, paragraph 1 of the Agreement, formal written notification of its withdrawal as soon as it is eligible to do so. Pending the submission of that notification, in the interest of transparency for parties to the Agreement, the United States requests that the Secretary-General inform the parties to the Agreement and the States entitled to become parties to the Agreement of this communication relating to the Agreement.”

Interestingly, it must be noted that Article 28, paragraph 1 of the Paris Agreement does nowhere suggest that a State party to the Agreement can circulate such type of ‘written notification showing its intent to withdraw from the Agreement.’ Article 28, Paragraph 1 reads as “At any time after three years from the date on which this Agreement has entered into force for a Party, that Party may withdraw from this Agreement by giving written notification to the Depositary.”

It is clear from the language of Article 28, paragraph 1, that under the terms of the accord, no State can withdraw until November 2020 and cannot even formally notify the UN of its intention to leave until 2019. So the communication serves only for Donald Trump to remind the world that he is seeking ‘suitable terms for re-engagement.’The United States accepted the Paris Agreement on 3 September 2016, and the Agreement entered into force for the United States on 4 November 2016. Therefore, according to Article 28, paragraph 1, US will not be eligible to withdraw from the Agreement till November 4, 2019.

The USA’ ‘suitable terms’ for re-engagement

The US in his written submission to the Secretary-General highlighted that,unless it identifies ‘suitable terms for reengagement,’ it will submit to the Secretary-General aformal written notification of its withdrawal as soon as it is eligible to do so. Now, it is far from theclarity that what would be the suitable terms for theUS to make it re-engage again in climate change negotiation regime. Till now, there is no explicit indication, neither from the USA official statement including press release nor its submission to the UN Secretary-General, that on what ‘suitable or most favourable’ terms Trump administration will agree for reengagement that will, perhaps, be more in tune with his popular political slogan ‘make America great again.’However, there might be four possible speculative ways in which theUSA could establish different terms for participation. These may include:

That US could seek to renegotiate few aspects of the Agreement itself. Though several countries have made it clear that the Agreement is ‘irreversible.’ In this background, this option would hardly work for the USA. However, theoffice of UN Secretary-General welcomes any effort to re-engage in the Paris Agreement by the United States.  Secretary-General has also shown his interest in engaging with the American government and all other actors in the US. Meanwhile, Secretary-General of the UNFCC (United Nations Framework Convention on Climate Change) said that the Paris Agreement remains a historic treaty signed by 194 and ratified by 147 countries. Therefore, it can not be renegotiated based on the request of single Party. However, Secretary-General (UNFCC) showed her interest in engaging in dialogue with the United States government regarding the implications of this decision of withdrawal.

That US could also seek to modify its ‘nationally determined contribution,’ i.e., the US emission target. The media-note also appears to be addressing this issue when it refers to the Administration’s support to “climate policy that lowers emissions while promoting economic growth and ensuring energy security.”The US further affirms that it will continue to reduce its greenhouse gas emissions through innovation and technology breakthroughs, given the importance of energy and security in many nationally determined contributions.

That, thirdly, US could seek ‘more favourable’ terms within the Paris-related guidelines that are still being negotiated for reporting and review. Such guidelines are due to be completed in 2018. It is perhaps this reason that the media note states that the US will continue to participate in the Paris-related negotiations, to protect US interests and ensure all future policy options remain open to the administration.” And possibly,for this reason, US has shown his intention to walk out only from the Paris accord, not also from the UNFCC convention.

That US might also seek improved terms of negotiation outside the framework of the agreement, such as bilateral or multilateral energy-related cooperation. As it is perhaps precisely indicated from the media-note that the US will “work with other countries to help them access and use fossil fuels more cleanly and efficiently, and deploy renewable and other clean energy sources.

Continuation of policy of re-engagement in COP23

COP23/CMP13 was decided to be hosted in Germany and presided over by Fiji from November 6 to November 17, 2017. In its opening joint plenary meeting held on November 6, US retreated its earlier position regarding withdrawal from the Paris accord unless it finds suitable terms for renegotiation. US said that “the US will withdraw from the Paris Agreement unless he can identify terms for reengagement that are more favourable to the American people.” “The Administration’s position remains unchanged.” Again, in the closing joint plenary session held on the last day of the conference,i.e., November 17, 2017, US said that U.S. participation in COP-23, including negotiations at this session relating to the Paris Agreement, does not indicate a change in the U.S. position.

One more political-cum-legal aspect to note here in COP23 that theUS has very smartly carried on its monetary diplomacy for future climate negotiation. The US has made it clear in very explicit terms that the financial pledges made under by the last administration are not legally binding. Moreover, with regard toeconomic matters, and in particular the $100 billion collective finance goal, the US has already taken a position that the finance goal is aspirational in nature, is not legally binding, and does not create rights or obligations.And it remains a domestic decision of the US or any other country for that matter.

As Trump administration said in media note that it will continue to reduce greenhouse gas emissions through innovation and technology, and enhance resilience activities where mutually beneficial to its broader foreign policy, economic development, and national security objectives, it reaffirms its endeavor to work closely with other countries to help them access to clean and efficient renewable energy sources. Here, US seems to be more in futuristic diplomatic engagement on climate issues, to bargain either bilaterally or multilaterally, perhaps outside of the UN Climate negotiation regime. From here, it would be not easy to assess which way US position will be tumbled precisely.

However, keeping in mind the dangerous multi-dimensional ramifications and impacts of climate change on the existence of human being and their future survival, it becomes imperative for the world community including USA to come together and address the multi-faceted issues of climate change taking place around the world. The USA must take the lead in tackling climate issue since it also emits world most substantial greenhouse gases. In addition to that, US also possesses themore financial capability, technological access, and infrastructure facilities along with thecapacity to mitigate greenhouse gases.

Abhishek Trivedi is pursuing his LL.M. degree in International Law from Faculty of Legal Studies, South Asian University-an International University established by SAARC Nations, New Delhi. His fields of interest and research in academics are Public international law, Law of International Organization, Human Rights law, Conflict of laws, commercial arbitration and International Environmental Law

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American law firm’s frivolous lawsuit against China targets the wrong defendant

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photo: APEC

When I first heard the recent news that Florida’s Berman Law Group had the chutzpah to sue China for trillions of dollars for allegedly causing COVID-19, I thought that they must be a bunch of ambulance-chasing shysters who were fronting for President Trump to help him “stick it” to China. But these opinions were wrong. The firm actually is Democratic Party leaning and employs Presidential candidate Joe Biden’s brother as its senior advisor. What’s going on?

I trained as a lawyer at Harvard but am not always proud of the legal profession. From 1973, the year I graduated to 1993, a Harris survey showed people’s confidence in lawyers plummeted from 24% to 7%. In a December 2019 Gallup poll, a mere 4% rated the “honesty and ethical standards” of lawyers as “very high. Among the most despised are personal injury  lawyers, the modern day equivalent of medieval alchemists who tried to turn lead into gold. The alchemists never succeeded but some of these lawyers did.

Many people are familiar with the 1994 McDonald’s hot coffee lawsuit in which a woman spilled hot coffee on herself and suffered serious burns. Common sense dictates that a reasonable person (the legal standard) would know that very hot coffee could cause injuries and to be careful, but her lawyers turned hot coffee into cold cash with a nearly three million dollar judgment.

Similarly, Berman hopes to turn people’s suffering in America into cash awards of which Berman would get a huge cut. Their odds in this case, however, are even less than winning the lottery. But they’ve already won by generating millions of dollars in free publicity for their firm, besmirching China’s reputation in the process.

Berman seeks damages for those who have suffered personal injuries, wrongful deaths, property damage, etc. without one iota of proof due to, among other things, “China’s failure to contain the COVID-19 virus, despite their ability to have stopped the spread of the virus in its early stages.” They accuse China of creating “essentially a giant Petri dish” in and around Wuhan and allege that China was “conducting ultra-hazardous activity at the Wuhan Institute of Virology” and “that COVID-19 escaped from the Wuhan lab because of lax controls”.

The relevant US statute, the Foreign Sovereign Immunity Act, is based on the age-old concept that the king can do no wrong and thus a government is immune from being sued. There are several narrow exceptions that Berman hopes to come under but they stretch facts and logic beyond the breaking point.

Jilin University International Law Professor He Zhipeng called the suit “wrong and absurd, lacking evidence and logic.” He said that “as for the alleged delay in decision-making, it is obviously a misunderstanding. Decision making on public issues is a very complicated. Every government must consider a variety of factors when taking decisions. Up to now, facts have proved that the Chinese government’s decision is correct, timely, and effective, and there is no obvious intentional or negligent delay. Especially if we compare this with the measures taken by governments around the world, it is quite clear there is no intentional delay.”

Foreign law lecturer, School of International Law, China University of Political Science and Law Don Lewis was even more blunt. He said that “it looks to be a spurious lawsuit – but who knows in this highly politically charged atmosphere where US-China relations appear to have hit rock bottom.”

Both scholars are right on the law. Mr. Lewis is also correct that the US is so politicized that normal legal precedents don’t necessarily apply any more. The US District Court Judge assigned to the case, Ursula Ungaro, was appointed by the first President Bush and I believe from her record that she will be fair and is likely to dismiss the case.

It is no small irony that Berman has not focused on the true culprit: Donald J. Trump who failed to act for nearly 11 weeks from when China informed the World Health Organization of the virus’ existence on December 31st, instead belittling the possibility of the coming health emergency to prop up the stock market and his chances for re-election; doing nothing to mobilize federal resources.

Sadly, millions in America and elsewhere will suffer as a result. It didn’t have to be this way. Trump’s quick action would have dramatically reduced cases. And much of the five trillion dollars promised by G20 members to inoculate world citizens and the global economy from economic meltdown could have instead been repurposed to preparing the world against new coronavirus pandemics and building a community of a shared healthy future for mankind.

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The ideology of top candidates for US presidency

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According to US media reports, the incumbent President Donald Trump has secured enough Republican Party support to launch a re-election campaign. Meanwhile, unexpectedly for observers, former Vice President Joe Biden has in recent weeks achieved impressive results in the race for being nominated the Democratic candidate. Although the campaign within the Democratic Party is not over yet, the chances of the former vice president are becoming more tangible. What are the views of the most likely contenders for the presidency?

According to the results of the Democratic Party primaries on March 17, Biden is running nearly 300 votes ahead of his only remaining rival, Senator Bernie Sanders, CNN reported. Thus, the final part of the presidential race will be held between the two “old timers” that represent the outgoing generation of American leaders. All three  –  Biden, Trump and Sanders – formed as politicians in the “neoliberal era.” Biden, according to most commentators, represents its mainstream, whereas Trump attacks neoliberalism “from the right”, Sanders –  “from the left”, accordingly.  Should Biden reach the final race, then, similarly to 2016, the fight will be between a representative of the establishment and an “outsider”.

In domestic politics, the focus will fall on “American values,” and, most importantly, on the young people of the United States. Trump, who describes  himself as an American “nationalist”, attracts supporters with slogans about the nation’s many commitments and “dues” to its citizens. In addition, in all the years he has been in office Trump has clearly preferred to focus his attention on issues that find a ready emotional response among potential voters. However, acting in this manner, Trump has all but added to the split in American society.

Now, with just a few months to go before November, the current head of the White House will have to prove that his policy is more than a fight against the legacy of the Democratic administration. And he will also have to prove whether he is able, having broken the existing model, to offer an equally effective alternative. Meanwhile, the reaction of the Trump administration at the early stage of the coronavirus epidemic seemed somewhat slow. The trillion infusion into the economy may not be enough to prevent the devastating recession that threatens the country because of the pandemic.

Biden, in turn, pledges to revive America’s “spirit”, expand social welfare programs, primarily for the most socially vulnerable sections of society, and take measures to restore trust within the country’s major political forces. According to some experts, this makes Biden similar to European Christian Democrats at the peak of their popularity. The most likely candidate from the Democratic Party is seeking to create a broad coalition of forces, including elite groups, the urban middle class and the rural poor in order to confront the “radicals.” This political “range” makes him the most compromising figure of the candidates participating in the presidential race, thereby increasing the chances for stabilizing the US political system.

On the other hand, Biden’s main, if not only, advantage may turn out to be the support of the establishment which is opposed to Trump. The election ideology of the former vice president runs the risk of being reduced to “anti-trumpism” in all imaginable spheres of political and socio-economic life. Biden’s victory in the race for the White House could thus become a most treasured and valuable asset for his supporters. As a result, his hypothetical presidency may turn out to be “weak and short of purpose” and will not provide the solutions to the many internal and external problems that America faces.

In foreign policy, few observers venture out making predictions about Trump’s policy in the event of re-election. On the one hand, as far back as in December 2017, in his version of the National Security Strategy, Trump said that the world has turned into a stage of global competition. Now that literally every day there appears new evidence of the West’s dependence on supplies from China in “practically everything”, few in America and Europe have doubts about the need to re-evaluate the foreign policy strategies of past decades. The current epidemic that has swept the world provides a good opportunity to legitimize the philosophy of world order based on “egoism and protectionism”, which can now be presented to the public as “defense of national interests”.

On the other hand, the course for America’s unconditional supremacy that has become common in the past three years has cast doubt on the feasibility of the entire “West-centric” development paradigm. However, most of the American establishment, even within the Republican Party, are still preoccupied with maintaining the country’s top position in the international system. And to achieve this, as the years of Trump’s presidency have shown, America cannot “limit itself to the benefits of bilateral trade relations, ignoring participation in international trade agreements. Practice has shown that such agreements can be created and can function without the United States. ” The policy of sanctions and financial and economic pressure adopted by Washington in recent years encourages discussions about the prospects of creating a financial and economic system or systems independent from the USA. New political coalitions are springing up in Eurasia, Asia, and Africa.

Nevertheless, Trump’s supporters insist that he is “not an arsonist of war, neither is he an isolationist.” His strategy is to exert ever more pressure on opponents with a view to secure “de-escalation on favorable terms.” Trump always wants to be prepared for any possible threats. Thus, he demonstrates to the “other party” that America has interests and is determined to protect them. If the opponent recognizes the interests of the United States, then, if the opportunity presents itself, “a deal is struck”. The “Trump Formula” combines well-considered, cautious (often aggressive – author) pressure with an invitation to hold a dialogue, for cooperation. … Thus, although Trump’s rhetoric smacks of populism, his foreign policy is consistent with the “traditional conservative” paradigm.

The chances of the candidate that represents the left wing of the Democratic Party, Senator Bernie Sanders, are seen by the overwhelming majority of observers as “purely mathematical.” Nevertheless, we know little about Sanders’ foreign policy views. “Sanders is a big unknown. What exactly his foreign policy could be is unknown ”. Sanders’ official website announces his intention to “work together with other countries to protect democracy around the world from “forces of intolerance, corruption and authoritarianism. ” In public speeches, Sanders more than once “named Russia an authoritarian regime”, supported American sanctions against Russia “for Crimea and Donbass”.

However, most experts believe that Biden’s views on foreign policy are “well known.” The ex-vice president is set to restore “US leadership on the world stage.”  Biden is seen by supporters as the only candidate whose foreign policy philosophy “has proved its efficiency.” It combines a “realistic view of the world” and “commitment to principles.” Speaking of countries that “behave badly,” Biden emphasizes that even if America can do nothing, it must openly express its discontent. Biden expects to bring America back to a time when it “saw farther than others” due to its superiority.

However, skeptics are sure that the world will not dance to the wishes of the Democratic candidate. The next president will have to deal not only with the challenges of the 21st century, but also with geopolitical issues. The American critics of Biden relentlessly repeat that he always supported the current model of globalization, in which the United States was critically dependent on the supplies of a number of strategically important goods from China. As a result, “China is about to oust America”. The policy of the Obama administration, of which Biden was one of the main architects, has not had the slightest impact on Beijing’s behavior.

In relation to Russia, the failure of the inquiry into allegations of Trump’s conspiracy with Moscow during the 2016 presidential election theoretically “unties Trump’s hands.” However, further dialogue may be obstructed by the numerous sanctions against Russia initiated by the Congress during Trump’s first term. American “realists” give it to understand that “from the … practical, political viewpoint, the Russia policy of the Trump administration is tougher and more consistent than that of any other American government since the end of the Cold War.” “Not a single American government invested more in Europe to contain Russia or moved troops and military equipment to Eastern Europe”.

Biden has a tough, if not “hawkish,” position regarding Russia. The years of vice presidency in the Obama administration, many observers believe, left Biden feeling disappointed about prospects for developing ties with Moscow. Nevertheless, Biden has made a number of statements that demonstrate a potential willingness to hold a dialogue with Russia. For example, on strategic stability, regarding the extension of the START III Treaty. German experts expect Biden to return to the classic foreign policy model: to keep “Russia and China at a distance” while maintaining cooperation with these countries on a number of issues. Also, they expect Washington to return to the policy of developing partnership relations with “countries that share US values”. Finally, the American establishment has long come to the stable bipartisan consensus about the need to go any lengths to contain China.

Overall, it seems that as long as  it is under way the presidential race will most likely create new obstacles to contacts between Washington and Moscow. There are grounds to believe that the United States will begin another round of competition for the title of Russia’s most irreconcilable adversary. Considering all this, it is not difficult to assume that the coronavirus epidemic, as well as the resulting economic recession, which is becoming increasingly visible in the United States, will top the agenda of the future head of the White House, no matter who wins. Given the situation, the approach of the Washington establishment to Russia may not go beyond the bounds of its functional role in its internal struggle.

Both Trump, and his most likely contender in the upcoming elections, Biden, seem to be unprepared to admit that the world will no longer adapt to America. On the contrary, the United States will have to adapt to a new, more decentralized and largely chaotic world – to the “post-American dominance world”. Are the two “grey-haired candidates” able to accept the new reality? This is the main question of the current American presidential race.

From our partner International Affairs

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Can these 6 worldwide Google search trends predict the 2020 US presidential election?

Bhaso Ndzendze

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Whilst international observers are commonly deployed in fragile or new democracies in the developing world, elections in the developed world are viewed from outside, partially out of a sense of stake-holding in the outcome by the rest of the world (due to the preponderance of the West in the affairs of these countries) and partially out of curiosity, and therefore are consumed as a piece of popular culture. Out of these, the US electoral cycle is perhaps the most closely watched the world over. This is no coincidence as in each successive year previous records are shattered in terms of expenditures on advertising by the various campaigns. The digital sphere has become the main arena in which the various campaigns reach out to potential voters. By one 2019 Forbes estimate, the current electoral cycle has seen “an increase of 59% from the 2016 election year when an estimated $6.3 billion was spent,” which represents nearly 16.5% of total local broadcast TV advertising revenue for this year, whilst digital media is forecast for 21% of political ads, whilst cable TV and radio both claim 14% and 5% respectively.

This disproportional share for digital spending is indicative of what scholars have termed as the rise of “computational politics, ”defined by one study as “the application of digital targeted-marketing technologies to election campaigns.” With this increase arises the question of which candidate will come out victorious, and whether expenditure is a predictor for which will win. In the last (2016) election, this proved not to be the case, as the Democrats, at $1.191 billion, raised nearly twice as much in dollar terms than the Republicans (at $646.8 million) but still lost. More recently, we’ve seen Michael Bloomberg being forced to drop out of the campaign, despite spending as much as $936.2 million, whilst Sanders and Biden, the last two Democratic contenders, had spent $162.3 million and $84.7 million, respectively. In fact, US elections are notoriously difficult to predict with a fair degree of certainty. Be that as it may, looking at some data in the previous sixteen years (i.e., four electoral cycles) makes for some insightful analysis, and potential projections.

Briefly, I trace over the 2004-2016 period Google queries for American presidential frontrunners and eventual winners and incumbents in the world. All data utilised in this article is obtained from Google Trends, a publicly available dataset of worldwide Google searches since 1 January 2004. All charts were generated by the author from sorted data. The Google Trends scores are values that are calculated on an index that places scores from 0 to 100, where, according to Google,“100 is the location with the most popularity as a fraction of total searches in that location, a value of 50 indicates a location which is half as popular.” The four following charts below show the growth for searches for each candidate between 2004 and 2012.

[Chart by author. Data sourced from Google Trends.]
[Chart by author. Data sourced from Google Trends.]
[Chart by author. Data sourced from Google Trends.]
[Chart by author. Data sourced from Google Trends.]

The undeniable trend from all four charts is that the candidate who gets the most searches goes on to win the election, despite both candidates getting an uptick the most amount of searches in November, the month of the election (with the eventual winner experiencing the most amount of searches). Given the results from the four election cycles, it is worth peaking assessing the amount of searches for the two Democratic frontrunners against Donald Trump.

Despite the field only being in a phase of narrowing down, past results show that the eventual winner starts getting the most amount of searches as early as January of the election year.

[Chart by author. Data sourced from Google Trends.]

The only exception was the 4th of March, the day after Super Tuesday, when Joe Biden got the most amount of searches, gaining 40% of the searches, whilst Sanders got 31% and Donald Trump got 29% (see pie chart above). Following the 4thof March, however, the ranking reverted to Trump being more searched than both Democrats, whilst among the Democrats themselves, Vice-President Biden began being more searched than Sanders, which continues to be the case at the time of writing.

[Chart by author. Data sourced from Google Trends.]

For the majority of the first quarter of 2020, therefore, has Trump having 77% of the searches, whilst the two Democrats only have 23% of the searches, split between Bernie Sanders (14%) and Biden (9%). If global Google search trends are any proxy for name recognition, therefore, we can reasonably expect Trump to be re-elected as President in November, regardless of which Democrat is eventually nominated. Indeed, any different outcome would go against the grain of the last four elections.

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