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International Law

China and the SEA in the Asia’s Troubled waters

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Coastal State’s claim over the ocean has been accommodated by the 1982 Law of the Sea Convention (LOSC)  though a quid pro quo arrangement, that is something for something. While Coastal States are given certain degree of sovereignty over their surrounding oceans, yet other states interests should also be respected, which include rights of navigation as well as ocean resources usage rights. While such arrangement can be seen as a ‘package-deals’  offered by the LOSC, however, in practice things would never be as easy as it could be. Complication arising from LOSC’s arrangement varies from geographical condition of both the coastal state and the ocean itself, to broader interests of other states, in this case user maritime states. In addition to this, the problem of maritime delimitation between adjacent states poses another problem.

A never-ended problem related to maritime delimitation as well as access to ocean resources, has been the issue of South-China Sea (SCS). The SCS is a semi-enclosed sea which is surrounded by at least eight States; China, Vietnam, Malaysia, Singapore, Indonesia, Brunei, the Philippines and Taiwan. Such geographic location has made SCS surrounded by the land territory of many states and thus the sovereignty as well as sovereign rights of the surrounding states upon the SCS became complicated. In addition to this, the SCS area consists of four islands, which include Pratas, Macclesfield Bank, Paracels and Spratlys.  Upon such geographical complexion, China declared its claim upon the SCS based on its map known as the nine-dashed lines which encircle almost the entire SCS and within which China claims are China’s historical waters over which it has sovereignty. On the other hand, other littoral states are also claiming sovereignty over small islands in the SCS, namely, Vietnam claims the Spartly Island, while the Philippines and Brunei claims the Kalayan Island Group (KIG).

While the overlapping claims remain, in May 2009 China submit a claim before the United Nations, claiming several islands, which include Spartly, Scarborough Soal, Paracel and others to be included within its territory based on the nine-dashed lines map, combined with occasional references to “historic waters.” In April 2012, the Philippines Navy caught eight Chinas’ fishing vessels in Scarborough Soal waters, that is 220 km off-shore Philippines. Is should be bear in mind that the Scarborough Soal is claimed by several states, namely China, the Philippines and Taiwan. In January 2013 the Philippines submit its objection to the China’s nine-dashed lines to the Permanent Court of Arbitration demanding the cancelation of the nine-dashed line map proposed by China. Permanent Court Arbitration (PCA) resulted on the illegitimate China’s claim, China has asserted that they will not participate on the proceeding and neither obeys the final award of the PCA.

This paper seeks to analyze legal implications upon China’s refusal on PCA’s award to Indonesia’s border security over the waters around Natuna Islands. It further proposed what should be done by Indonesia in anticipating both legal as well as political consequences of such assertive reaction taken by China.

The Philippines vs. China before the Permanent Court of International Arbitration

While conflict between affected littoral states over the South-China Se remains, in 2013 the Philippines brought the case before the Permanent Court of Arbitration. The disputes concerned was on the legal basis of maritime rights and entitlements in the South-China Sea, the status of certain geographic features in the South-China Sea and the lawfulness of certain actions taken by China in the South-China Sea. In brief, basically there are 4 (four) claim submitted by the Philippines before the PCA.[1] Firstly, the Philippines seek advice from the PCA to solve existing disputes over the SCS regarding the rights to occupy the SCS. More specifically, asking PCA to declare that the rights to occupy the SCS should be based on the 1982 Law of the Sea Convention (LOSC) rather than based on ‘historic rights’. Secondly, the Philippines seek advice from PCA to solve maritime delimitation disputes over the Scarborough Shoal and certain resources in Spratly Islands, which has been claimed by both Philippines and China. Thirdly, the Philippines asking the PCA to solve matter related to the validity of China’s claim over the SCS. The Philippines required PCA to deliver award that China has conducted wrong doing upon their actions, as follows:

a.Intervening Philippines’ rights in accordance with the LOSC with regard to fishing, navigation and other natural resources exploration and exploitation as well as the establishment of artificial islands;

b.Has failed to save ocean environment by giving support to China’s fishermen, who has caught the endangered species as well as the use of non-environmental friendly fishing method which lead to the destruction of coral reef ecosystem in the SCS; and

c.Causing the damage on marine environment by the establishment of artificial islands as well as reclamation in the area of seven coral reef areas in Spratly Islands.

Fourth, that China has worsened the dispute by limiting Philippines’ access to Marine Detachment in Second Thomas Shoal.

The SCS case between the Philippines and China, in fact involves various legal aspect. However, crucial aspect that worth to be discussed is the concept of ‘historical rights’ which has been used as legal basis by China in claiming its sovereignty over the SCS. As this turn out, PCA only used the LOSC as valid legal basis in deciding the case. PCA further stated that:

“This arbitration concerned the role of historic rights and the Sumber of maritime entitlements in the South China Sea, the status of certain maritime features and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China that were alleged by the Philippines to violate the Convention. In light of limitations on compulsory dispute settlement under the Convention, the Tribunal has emphasized that it does not rule on any question of sovereignty over land territory and does not delimit any boundary between the Parties”. [2]

In its decision, PCA was unanimously giving award to the Philippines and declared that “the Tribunal concluded that, to the extent China had historic rights to reSumbers in the waters of the South China Sea, such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the Convention. While the award clearly stated that ‘historical rights’ were incompatible with LOSC, it is interesting to find out the origin of ‘historic claim’ as well as analyzing whether the term ‘historic rights’ and ‘historic waters’ ever exist within both LOSC and other customary international law of the sea.

Figure 1: China’s nine-dashed lines covering vast majority of the SCS areas

Legal Implication on China’s refusal upon PCA Award

Upon PCA award, Chinese Government insists on the position that it will not obey PCA Award due its absence during the trial. This position was stated clearly by China through diplomatic notes titled “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of Philippines”  dated 7th December submitted before the court and Netherlands Government. In sum, the diplomatic notes declared as follows:

“It is the view of China that the Arbitral Tribunal manifestly has no jurisdiction over this arbitration, unilaterally initiated by the Philippines, with regard to disputes between China and the Philippines in the South China Sea.

Firstly, the essence of the subject-matter of the arbitration is the territorial sovereignty over the relevant maritime features in the South China Sea, which is beyond the scope of the Convention and is consequently not concerned with the interpretation or application of the Convention.

Secondly, there is an agreement between China and the Philippines to settle their disputes in the South China Sea by negotiations, as embodied in bilateral instruments and the DOC. Thus the unilateral initiation of the present arbitration by the Philippines has clearly violated international law.

Thirdly, even assuming that the subject-matter of the arbitration did concern the interpretation or application of the Convention, it has been excluded by the 2006 declaration filed by China under Article 298 of the Convention, due to its being an integral part of the dispute of maritime delimitation between the two States.

Fourthly, China has never accepted any compulsory procedures of the Convention with regard to the Philippines’ claims for arbitration. The Arbitral Tribunal shall fully respect the right of the States Parties to the Convention to choose the means of dispute settlement of their own accord, and exercise its competence to decide on its jurisdiction within the confines of the Convention. The initiation of the present arbitration by the Philippines is an abuse of the compulsory dispute settlement procedures under the Convention. There is a solid basis in international law for China’s rejection of and non-participation in the present arbitration.

Furthermore, China added more statement “[t]his shall by no means be interpreted as China’s participation in the arbitral proceeding in any form.”  Upon such situation, Article 288 of the LOSC and Article 9 of LOSC’s Annex VII provide:

a.Article 288 of the Convention provides that “In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.

b.Article 9 of Annex VII to the Convention provides that “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.”

It is clearly stated that in the situation whether the arbitral have competence in deciding certain case, the authority to decide is the arbitral itself and not the parties. In addition to this, in the absence of one party in the dispute, another party have the right to ask the arbitral to continue the proceeding. Thus, it is submitted that the absence of one party cannot prevent the proceeding to be continued.             On the awards on jurisdiction, PCA considered the application of Article 281 and 282 of the LOSC, which allow a state to apply other dispute resolution method outside the LOSC, if the parties agreed to. Article 281 and 282 of the LOSC read:

“If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.

If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.”

PCA considered the application of Article 281 dan 282 upon the following documents to find out whether both parties have agreed on other dispute resolution method; (a) the 2002 China–ASEAN Declaration on the Conduct of Parties in the South China Sea (the “DOC”), (b) a series of joint statements issued by the Philippines and China referring to the resolution of disputes through negotiations, (c) the Treaty of Amity and Cooperation in Southeast Asia, and (d) the Convention on Biological Diversity (the “CBD”) .

Nevertheless, PCA refused China’s argument which stated that the Document of Conduct (DOC) agreed between ASEAN and China was a political agreement and did not intended to be a binding agreement which is applicable in disputes resolution method.  Since the DOC is silent on the binding settlement mechanism,  and does not exclude any other dispute resolution method,  it is argued that PCA can decide based on Article 281 and 282 of the LOSC. PCA also finds out the same conclusion relating to Joint Statement mentioned in China Diplomatic Notes.  In relation to the Treaty of Amity and Cooperation in Southeast Asia and the CBD, PCA declared that while both agreements bind parties in the disputes resolution chosen by the parties, there is no binding mechanism within the agreement whatsoever.  To conclude, there is nowhere in those agreements prevent the Philippines to bring the case before the PCA.

As this turn out, PCA reward the Philippines and declared that China’s Claim over the SCS with its nine-dashed lines as illegal and found China to be guilty of conducting illegal maritime activities inside the Philippines’ exclusive economic zone. Upon such award, as stated, China refused to apply the award in any cases. Furthermore, instead of moving away from the disputed area, Chinese military and non-military vessels have regularly undertaken activities to strengthen their de facto control of the area. China seems to undertaken the passive assertiveness over the area and avoiding assertive action which could lead to incident, while also expanding its movement in the SCS.  This condition brings several legal implications to the neighboring adjacent states surrounding the SCS, especially to ASEAN’s member states. This includes an increase of China’s maritime power within the South Asia region, which also effect the South-East Region.

In addition to this, it is assumes that China will strengthen its domestic law in claiming several areas in the SCS. This way, a potent disputes may arise between China and other claimant states, in particular ASEAN’s member states. China aggressive response to the PCA’s award might also bring further legal implication for less affected state like Indonesia. While the SCS dispute does not directly affected Indonesia at the moment, however, it might affected in the near future. As an archipelagic state, Indonesia is entitled to draw archipelagic baselines connecting the outermost point of its outermost islands.  Despite the fact that Indonesia does not claim any of the disputed islands located in the SCS, Indonesian has an outer island group, the Natuna Islands, which are adjacent to the SCS.  These Islands are used as Indonesian basepoints. Due to Indonesia’s sovereignty over the Natuna Islands, consequently Indonesia has the rights over certain areas of waters measures from Natuna’s baselines in accordance with international law. From this baselines Indonesia also entitles various maritime zones established by the LOSC.

This results in the fact that Indonesia has to share such ocean with neighboring states which are also claimant states in the SCS dispute, namely Malaysia and Vietnam.  While agreement has been reached over delineating the continental shelf between states, Exclusive Economic Zones (EEZ) delimitation remains unsolved. If China strengthen its nine-dashed line claim and keep asserting its military power within the area, it is possible that China and Indonesia involve in a disagreement on maritime delimitation around Natuna Islands.

Conclusion

Prior to the PCA’s award, Indonesian President, Mr. Joko Widodo, commented on the matter of the SCS disputes saying that while Indonesia is located considerably near to the SCS, yet Indonesia does not have a direct interest in the SCS. However, recent development shows different position. During President Jokowi’s visit to Natuna Islands recently, it was reminded that in 1996 China has recognized Natuna’s waters as Indonesia’s Exclusive Economic Zone (EEZ).

This paper argued that while the SCS disputes so far does not have direct impact on Indonesia, yet, some areas of Indonesia’s EEZ in Natuna Islands overlap with the China’s nine-dash line. Since China has declared to refuse the award of PCA, Indonesia should make further legal and policy framework in implementing its sovereign rights over its EEZ in Natuna Islands. In addition to this strong political assertion should also be taken in anticipating china’s movement in the SCS through its nine-dash line claim.

  • [1] Read further Kristiyanto, Kristiyanto, Puspitawati, Dhianadan Ardhiansyah, Agis, Konsep Historical Rights dalam SengketaLaut Tiongkok Selatan berdasarkan Putusan PCA Case Number 2013-19 in the Matter of the South China Sea Arbitration between the Philippines and China, Final Essay, Law Faculty, Brawijaya University, 2017
  • [2] Press Release Permanent Court of Arbitration tertanggal 12 July 2016 which giving unanimous award to the Philippines over the SCS disputes.
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International Law

US Migrant Crisis and the Global Human Rights Protection Standards

Dr. Nafees Ahmad

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Migrants and asylum seekers from Central America have been marching towards the US for protection and shelter. But US government has deployed around 6000 soldiers to prevent them from entering into the US. These migrant and asylum seekers convoys have been dubbed as “a foreign invasion” by the incumbent US President that needs to be confronted by the US army. President Trump hard-headedly argued that “immigration is a very, very big and very dangerous, a really dangerous topic” that prompted the US army officials of firing tear gas shells at migrants’ convoys. It is nothing but the portrayal of an invasion by the Central American migrants and asylum seekers into the US. Such a US posturing on international migration is a manifestation of the US tradition of hypocrisy and its deep-seated aversion towards the migrants that violates global human Rights protection standards (GHRPS). Thus, the across-the-board new migration strategy of the US is based on the idea of ultra-restrictionism that deprives the immigrants from public benefits, and recently President Trump has entirely abolished the Deferred Action for Childhood Arrivals (DACA) programme along with the abrogation of the temporary status protection programmes. These measures have adversely impacted the GHRPS required for the 2 million regular migrants in the US which spawned the emergence of a well-founded fear of persecution, far-right nationalism, and socio-cultural schism.

New Migration Strategy

The US restrictive measures have attracted international media attention and the US is hell-bent to send a message to the international community that it would not be privy to the non-binding standard for a safe, orderly and regular migration known as the UN Global Compact on Migration (GCM) arrangement scheduled to be agreed in December 2018 and US is alone capable to take its decisions on immigration issues under America First Policy (AFP).Therefore, the GHRPS for migrants and asylum seekers are apparently immaterial in the US immigration policy objectives. Trump administration under AFP discourse envisions restrictionism, deterrence, and pre-emption against GHRPS while denying public benefits to immigrants at par US citizens. Unfortunately, strong and inclusive migration control strategy has been devised and is being implemented to restrict the rights of those migrants and immigrants who are already there in the US. For example; Trump administration has been attempting to temper the 2020 US census that is bound to influence the political scene for the advantage of Republicans in the years ahead.

However, ex-President Barack Obama also resorted to the deployment of US armed forces on the US-Mexico international border to curb migration that resulted in some cases of family-separations but at a low rate if it is measured against the present Trump administration. The point of distinction between the Obama and Trump administrations is that the former recognized the contribution of migrants to the US’s growth; however, this understanding has steadily acquired a negative narrative under the later administration. President Trump has been demanding $5 billion to construct a wall along the US-Mexico international border otherwise intimidating shutting down the US government. However, Trump administration apparently does not leave any stone unturned in case of violently pushing back migrants and asylum seekers. Trump administration has inaugurated its immigration policy with a Travel Ban from seven Muslim countries and now it has been stretched to Latin American countries against all norms of GHRPS and international law.

Global Human Rights Protection Standards

The incumbent US administration is more interested in denying migrants and asylum seekers the access to benefits under the US national laws and global human rights protection standards. The latest Trump’s proclamation is to contain the new arrivals from Mexico and its Southern nation-states which restrict the right to seek asylum in the US beyond the port of entry. Further, impugned presidential proclamation defers well-established US asylum legislation that contravenes due process of law, the rule of law and international treaty law recognized and sanctified under the Constitution of United States of America. However, this presidential proclamation or asylum ban has, for the time being, been stopped by the San Francisco Federal Court under a restraining order.

In spite of this, the Immigration and Nationality Act, 1965 states that any “alien or foreigner who is physically or personally present in the US or who comes in the US (whether or not at an officially designated port of entry, irrespective of such alien or foreigner’s status, may apply for asylum.” However, under Section 212 (f) the US President is empowered to enforce immigration restrictions by issuing a proclamation. Further, the US President may if feels that “the entry of any alien or foreigner or any class of foreigners or aliens into the US would be detrimental to the American interests suspend the entry of all foreigners or aliens or any class of aliens or foreigners as non immigrants or immigrants, or impose on the entry of foreigners or aliens any restrictions he may deem to be appropriate.” Precisely, President Trump invoked this provision of law to clamp these insensitive and punitive restrictions. This presidential decree has aggravated the Trump’s AFP to new levels of castigation. Groups and individuals seeking asylum and entering the US while avoiding official ports of entry were slapped with criminal cases that got them separated from their families. Such irregular entries were criminalized by the US border authorities in violation of “the right not to be penalized for irregularly entering into the territory of High Contracting State” under Article 31 of the 1951 UN Convention relating to the Status of Refugees (UNCSR) with its 1967 Additional Protocol that has been acceded to by the US.

Having hit with such transgressions, the criminal charges leveled against asylum seekers did not affect their asylum claims, and they were duly entitled to have their asylum claims heard. However, this scenario is no more there as new reports indicate that a single-digit number of asylum applications are disposed of daily at the designated entry ports. Therefore, such a situation has led to inordinate delays in processing the applications of asylum seekers at the border that is a violation of Section 1 of Amendment XIV of the Constitution of United States of America that codifies the core values of the people of the USA. But many persons have been denied access and abducted, raped and thrashed to the hilt. However, Article 33 (1) of the UNCSR contains the principle of non-refoulement stemming from the customary international law that works as “a safety valve” which obligates the nation-states to protect a refugee, migrants, stateless and asylum seekers who is fleeing from persecution, risk or danger to life in his or her country of origin or homeland. Few scholars contest the applicability of the principle of non-refoulement extra-territorially; however, the UNHCR (United Nations High Commissioner for Refugees) has already recognized the extra-territorial application of the non-refoulement principle, and the denial of entry into the US is a violation of the UNCSR.

Moreover, there is another principle of international law where under collective or mass expulsion of the refugees, migrants or asylum seekers is prohibited and obligates the nation-states to examine objectively and cumulatively every expulsion action of each individual and group of persons. The “hot return” policy of the US clearly violates this obligation under GHRPS. Thus, this practice primarily rescinds the right of the huge majority of migrants and asylum seekers to seek for asylum. Therefore, it also circumvents the objects and purposes of the UNCSR.

The Hot Return Policy

The hot return policy stems from the US Department of Justice regulation of 1953 that entails the “100 Air Mile Zone” rule; however, that negates the Fourth Amendment of the US Constitution under which the right and protection against arbitrary and random searches have been provided within this zone. But Border Patrol officials have been empowered to operate the immigration checkpoints in this vast zone with extra-constitutional powers. Under the “zero tolerance policy” Department of Homeland Security wields enormous powers and conducts speedy ejections of undocumented migrants within this area. The fundamental rights and freedoms such as the right to counsel or the right to a hearing before a judicial immigration authority and the right against expulsions are not available in the situation of “hot returns.” The new regulation has precisely been founded upon this mechanism and whosoever arrives at the designated checkpoints will be pushed back devoid of any due process of law. Anti-migration-driven steps like the family separation, ankle-monitors for asylum seekers and detention of asylum seekers during the process of determination of their asylum claims. Therefore, it has become a double-edged weapon as when asylum seekers try to apply at authoritative ports of entry they are prevented from doing so and when some migrants and asylum seekers do not follow the law and try to manage surreptitiously asylum benefits they are also prevented from claiming asylum within the US. In fact, the impugned policy violates the UNCSR, customary international law and the provisions of general international law. Therefore, civil society institutions like the Center for Constitutional Rights, the Southern Poverty Law Center and American Civil Liberties Union filed cases in the US courts against such illegal actions of the Trump administration.

The Rights of Migrants and Asylum Seekers

There is a plan to have secret measures to restrict the rights of migrants and asylum seekers in the US against all protection standards of the so-called civilized world. The rights of refugees, migrants, and asylum seekers are in active violation in the US who espouses the cause of human rights, the rule of law, democracy and diversity worldwide. For example; in the Matter of A-R-C-G- et al. decided on August 26, 2014 at the US Department of Justice by the Executive Office for Immigration Review where the Board of Immigration observed that “married women in Guatemala who are unable to leave or run away from their relationship” which can constitute a cognizable “membership of particular social group” that establishes the basis of the right to seek asylum or withholding of removal under Sections 208(a) and 241(b)(3) of the Immigration and Nationality Act, 1965 and which is also a prerequisite for meeting the criterion of refugee definition under Article 1 of the UNCSR. However, law officers under the Trump administration adamant to subvert the well-established legal standards that provide respite and reprieve in the cases of domestic violence.

There is a perennial cycle of legal measures that are bound to belittle existing human rights protection standards like latest Trump administration’s endeavour to reverse the Flores v. Reno popularly known as Flores Settlement Agreement (FSA) in September 2018. The reversal of FSA will be the most inhuman act of the present US administration as separating and snatching children from their parents cannot be justified under any circumstance whatsoever.  FSA determines the limits on the duration and conditions under which children could be incarcerated in immigration detention, and it also regulatesthe detention, treatment, and release of detained minors by the immigration authorities. However, Trump Administration seeks to terminate the FSA’s legal defences for children, including the provision that children must be shifted to a non-secure, licensed facility within three to five days of detention, which has been construed to allow for an extension of up to 20 days in times of “emergency” or “influx.” The proposed regulations include some policies which, if implemented, would allow the government to incarcerate more families for even longer periods. Primarily, FSA’s goal was to release families and minor children from immigration custody quickly. Therefore, if FSA is reversed now, it would violate GHRPS and due process of law.

Way Forward

The US is the first country in the world that has been recognized as a country of migrants, enriched by the migrants and celebrates multiculturalism as an inalienable part of its existence since time immemorial. However, US policies based on the doctrine of American interests worldwide has done a massive disservice to the lives of the people worldwide.  The US supports and protects many national governments who serve its interests, US exploits and expropriates the natural resources of many countries and its prescriptive approach in formulating economic policies, forced regime change, subjugation of international organizations and selective discharge of international obligations have also contributed in displacing people from their roots. Therefore, it has to share the responsibility of hosting migrants and asylum seekers, particularly from its vicinity. In fact, many anti-migrants measures violate US municipal law, the US’s international treaty obligations as well as general international law. The US has to abdicate its restrictionism based on hate, threats, and xenophobia in consonance with its historical traditions of liberal democracy, diversity, and multiculturalism.

In this context, all anti-migrants restrictions and sanctions must be withdrawn while respecting GHRPS and international law obligations.As pictures circulate worldwide of US firing of tear gas enveloping migrants, asylum seekers and their children on US-Mexican border and terrified faces of children who are being snatched from their parents by the US Border Patrol agents, a UN Global Compact on Orderly and Safe Migration is likely to win near-universal approval at the inter-governmental conference scheduled to be held in Marrakesh, Moroccoon December 10-11, 2018 expected to be the final step before the UN Global Compact for Safe, Orderly and Regular Migration is formally adopted by the UN General Assembly. It has been a long-drawn journey to achieve such an ambitious plan for regulating and governing international migration by the international community. However, it would not be a legally binding treaty even then, unfortunately, US has already shunned this global initiative against the mandate of its own constitution.

The Constitution of the United States of America is a sacred covenant achieved by an immeasurable amount of human investment that has established an equal society in America. But, unfortunately, these restrictions on the rights of migrants and asylum seekers have weakened the US constitutional guarantees and liberties under the current administration. The emergence of the far-right political discourse that is being well-sponsored and patronized under the Trump administration must be countered by strengthening the liberal democratic political discourse, and same must also be reflected in the institutional governance frameworks of the United States of America.

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Science Policy Holds Promise in the South China Sea

James Borton

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Scientific cooperation may succeed in de-escalating the current tensions in the tumultuous area of the South China Sea. This in spite of White House efforts to deny well-established climate change reports, and the U.S. withdrawal from the 2015 Paris Climate Accord, which has some observers questioning the wisdom of laying down a science-led peace-building plan in the contested South China Sea disputes.

Chinese oceanographers and their marine scientists are now raising a science flag to neighboring claimant nations in the region. At an increasing number of multilateral science conferences, Chinese scientists quietly admit that there are shared regional environmental security issues including acidification, biodiversity loss, coral reef destruction and fishery collapse. While in Washington, the Department of Defense and the U.S. Navy expresses skepticism about China’s rapid expansion of their oceanographic research expansions, it raises more opportunities rather than hegemonic problems.

Science may prove to be the crucible for bringing about a new level of cooperation rather than competition, not only among the claimant nations in the region, but also between Washington and Beijing.

Last year President Trump’s offer to Vietnam’s President Tran Dai Quang to mediate the complex and challenging disputes over access to fish stocks, conservation of biodiversity and sovereignty claims caught many observers by surprise, it should not have.

The stakes are getting higher in the turbulent South China Sea, not only because of Beijing’s militarization of reclaimed islands but also the prospects of a fisheries collapse. This should weigh heavily on all claimant nations and especially the United States. Challenges around food security and renewable fish resources are fast becoming a hardscrabble reality for more than fishermen. In 2014, the Center for Biological Diversity warned that it could be a scary future, indeed, with as many as 30-50 percent of all species possibly headed toward extinction by mid-century.

What’s clear is that the ocean’s resources are continued to be exploited at a record pace and a few of China’s fleet of almost 50 research vessels have now set their sights on American waters by navigating through the Federated States of Micronesia, near the U.S. territory of Guam.

In a recently published National Interest article, “Chinese Scientists Want to Conduct Research in U.S. Waters- Should Washington Let Them,” authors Peter Dutton and Ryan Martinson, argue that China is a strategic competitor in its ocean agenda. They claim, that “Beijing primarily invests in out-of-area oceanographic research in order to position China to better compete with other countries for security, resources, markets and political influence.”

While it’s true that these research vessels are a part of China’s National Fleet, the scientific oversight is to insure State Oceanic Administration’s management of oceanographic activities. Of course, the U.S. Department of Defense and the Seventh Fleet recognize that any Chinese research vessels must be monitored but there’s no issue with the PRC conducting freedom of navigation around Guam as long as it’s outside the limits of Guam, recognized by the United Nations Conventions on the Law of the Sea (UNCLOS).

It’s not too late for the U.S. to take the scientific high ground and renew the legacy of science diplomacy. After all, science initiatives are more widely accepted as efforts to solve global issues requiring contributions from all parties even if they have been dealt a bad hand elsewhere. On November 3, the White House signed off on a report attributing climate change and global warming to humanity. The report is in direct contradiction to the president’s action pulling the U.S. out of the Paris accord on climate change earlier this year.

Enter science diplomacy, defined as the role of science being used to inform foreign policy decisions, promoting international scientific collaborations, and establishing scientific cooperation to ease tensions between nations. It’s true that many policymakers and scientists do not speak the same language; however, there’s increasing evidence that points the compass towards the link between international science cooperation and international relations.

During the Cold War, scientific cooperation was used to build bridges of cooperation and trust, and it’s now time that the South China Sea becomes a sea that binds rather than divides. The defense skeptics in Washington certainly are correct in their observations that China’s distant fleets directly serves state interests. However, maritime research can be cooperatively shared and perhaps, the first step in China inviting fellow marine scientists and maybe even an embedded journalist or two aboard one of their marine research vessels.

There are strong ties among scientists across Southeast Asia and China, due in part to a series of international scientific projects, conferences and training workshops associated with the United Nations Food and Agriculture Organization’s South China Sea Fisheries Development and Coordination program.

Marine scientists in the Philippines and Vietnam are reviving conversations about the Joint Oceanographic Marine Scientific Research Expeditions (JOMSRE) last conducted in 2005 and organized between the Philippine Maritime and Ocean Affairs Center and the Vietnamese Institute of Oceanography.

These measures are essential in the face of rampant overfishing and a looming coral reef apocalypse occurring across the South China Sea, in part because of the conflicting territorial claims have made ecological analyses and management actions difficult.

Michael Crosby, president and CEO of Mote Marine Laboratory in Sarasota, Florida, believes the U.S. could dramatically improve international relations through marine science partnerships, and he understands the United Nations Convention on the Law of the Sea (UNCLOS) contains specific articles that apply to marine science and technology.

“A renewal of JOMSRE would be quite positive, although the changing political dynamics related to the Spratlys and other islands and reefs in the region over the last several years will likely create a bit more challenging environment for an international research survey,” Mr. Crosby said in an email.

Modern history offers excellent examples of how science supported diplomacy. In 1961 President John F. Kennedy invited Japan’s Prime Minister Hayato Ikeda to support the US-Japan Committee on Science Cooperation. In Science Diplomacy New Day or False Dawn, the editors Lloyd S. Davis and Robert Patman, offer compelling arguments for the adoption of science in diplomacy. This includes their study of the International Council of Scientific Unions (ICSU) with a lens on the success achieved among 60 countries, who were engaged in Antarctic cooperative research on the area’s ice sheets, atmospheric conditions and oceanographic properties.

Dr. Paul Arthur Berkman, a professor of practice in Science Diplomacy at Tufts University, reaffirms the lessons the Antarctica and extols science as a tool of diplomacy that builds bridges among nations and fosters stability in regions. Antarctica is the one place that arguably is the archetype for what can be accomplished by science diplomacy.

Under the Antarctic Treaty, no country actually owns all or part of Antarctica, and no country can exploit the resources of the continent while the Treaty is in effect. It is a classic example of international cooperation.

Also, it’s worth noting the success of the Red Sea Marine Peace Cooperative Research, Monitoring and Resource Management Program (RSMPP) where Israel and Jordan signed off on an ecosystem monitoring agreement and shared science data collection in the Gulf of Aqaba in 2003. RSMPP offers another model for improving international relations and building capacity through marine science cooperation in the South China Sea. These two opposing countries chose to promote the long-term sustainable use and conservation of their shared marine resources.

Professor John McManus, a marine biologist at the University of Miami, has researched the contested Spratly Islands for more than a quarter of a century. He has called repeatedly for the development of an international peace park and remains hopeful that other regional marine scientists and ecologists will support a collaborative science-driven initiative.

He says, “Territorial disputes have led to the establishment of environmentally destructive, socially and economically costly military outposts on so many islands. Given the rapid proliferation of international peace parks, it is time to take the difficult steps towards the establishment of a Spratlys Peace Park.”

Although the U.S. is not a signatory to UNCLOS, Washington can recommend that sovereignty claims be set aside in treaties implementing freezes on claims and claim-supportive activities, as has been done in the Antarctic. These and other natural resource management tools could be used far more effectively to secure fisheries and biodiversity, and also promote sustainable tourism.

Now that the mid-term election results are in, the White House may find this collaborative brand of science diplomacy works well in Asia.

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International Law

Ebbing Liberal World Order

Muhammad Usman Ghani

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The twentieth century witnessed unusual happenings across the globe. Its first half had to encounter with the two most deadly conflicts (2 World-Wars) which claimed millions of lives. The technological sophistication of weapons and the beginning of the Nuclear Age were responsible elements that made the both World-Wars bloody conflicts.

Fearing such happenings, the Allied powers in the aftermath of the World-War-II bent on establishing such order that could avert misfortunes, which the world had plagued. Thus, the liberal world order came into existence that endorsed mutual collaboration among the countries, the formation of multilateral institutes, and the upkeep of democracy. The liberal world order cherished; globalization, human rights protection, freedom of speech, and trade expanse among the countries. The organizations were formed to strengthen the liberal world order in the form of cooperation among the countries. In earnest to foster peace, the formation of the United Nations (UN) took place. For the purpose of economic advancement, the World Bank came into existence. To get the countries out of economic turmoil, the International Monetary Fund (IMF) formed. For the international trade objectives, General Agreement on Tariffs and Trade (GATT) formed, which years succeeding converted into the World Trade Organization. The democratic countries began to adopt the liberal world order aiming to respect the sovereignty and territorial integrity of the countries. The liberal order further entrenched its roots after the fall of the Soviet Union, as it intended to deter the aggression and prevented the invasion of countries on the other. The ideology of globalization by the exchange of products, ideas and communication among the countries, is the testimony to the services of the liberal world order.

One must realize that the foundation of liberal world order rests upon two pillars: one is the freedom of individual and the second is the growth of social and economic norms. The liberals applied the blend of freedom and growth in the years following the World-War-II. Since then the allied powers endeavored to restore the war-ravaged world, and consequently, the liberal order garnered much progress.

However, in the existing era, its existence is jeopardized since most of the countries have set their journey on the ways, which are deviating from the liberal world order. The world in the past few years has experienced the rise in populism (an antidote to the liberal world order), which has begun to eclipse the liberal world order.

The recent victory of the far-right candidate Jair Bolsonaro in the Brazilian presidential elections, in October 2018, has heralded the perversion of liberal world order. His victory has followed the onslaughts on LGBT people, women and any individual who opposed right-wing candidates. Bolsonaro enjoys the backing of conservatives and most reactionary sect of Brazil like pro-weapon lobby, industrialists, army and police force. Recently, Cuba has withdrawn thousands of doctors from Brazil after his criticism on the communist-run island’s More program, which sends Cuban doctors in destitute areas of Brazil. He said his government would bring changes in this program. His belief in men’s superiority over women hate towards indigenous, black, and LGBT community is a definite threat to the liberal order.

The world since Trump’s assuming the power of the US has seen the surge in the populism. He pushed the US into the trade-war against the other countries. He also repudiated the ideology of globalization while taking the podium of the UNGA in September 2018. Donald Trump prefers; transaction over the alliance, unpredictability over consistency, and bilateralism over multilateralism, which endangers the liberal world order. Trump adopted the idea of protectionism by uttering that “it will lead to greater prosperity and strength”.

The liberal world order’s countenance is defaced in other countries as well. The rise of AfD (far-right group) in Germany is yet another threat to the liberal world order. The AfD criticizes the immigration of trapped refugees to Germany. The group aspires changes in the constitution of Germany to get rid of the right of an individual hearing in asylum cases and opposes ruling “grand coalition” of Angela Merkel with social democrats. In September elections, the AfD became the first far-right group to conquer seats in the Bundestag in a half-century.

In the Netherlands, France, and Hungary, the far-right parties have tried to capitalize on the influx of Muslim refugees to woo Jews. The populist movements have won the plebiscites in Britain, Hungry and Poland. Britain’s decision to abandon the European Union in the form of Brexit is yet another instance of crippling liberal world order. The recent electoral triumph of left-wing populist parties such as Podemos in Spain and Syriza in Greece has given an impetus to the debate on the rise of populism in Europe. At times the populist possesses notion that rampant commercialization and globalization have rendered masses unemployed.

Now, the question emerges that why the liberal order has to face such ruin, and what are the driving factors behind it?

Patrick J. Deenen in his book ”Why liberalism failed” pointed out that humans are independent entities and distinct from nature and this principle keeps our hearts at war with nature. Modern science, as posited by René Descartes and Francis Bacon, was the locomotive that would make us masters and possessors of nature. But, this attitude almost certainly made for unprecedented success and prosperity to a liberal society, it is also responsible for today’s global ecological crisis which has no parallel in human history.

Another driving factor that fades the liberal order is the nationalism, which is a kind of loyalty of one towards its country; irrespective of what is right or wrong. Thus, the leaders in a bid to bolster their domain of influence and authority harness the tool of nationalism amidst the worst economic conditions. The same is the case with Donald Trump when he found a little debacle in the U.S’ economy, he bent on scrutinizing liberalism and adopted protectionism.

The man has always craved for the power, as his innate nature urges him to do so. Machiavelli in his famous work ”The Prince” has portrayed man’s nature as rogue, pirate and greedy. The arms race, aspiration of countries for assuming the world’s hegemonic saddle, confiscating feeble country’s resources and dominating political influence are the foremost goals that major powers are aspiring for. The pursuance of these goals has led the human far away from the policies and rules of the liberal world order. The Yemen crisis, the Palestine issue, turmoil in Syria, Kashmir issue, and Rohingya crisis are the epitomes of the interests of the global powers, which are exploiting these lands and their people for just the sake of interest in these regions; thus undermining the course of the liberal order. The global institutions like the United Nations, the World Trade Organization and the World Bank seem tether to address the turmoil and issues among the countries.

In a nutshell, illiberal norms in the world are posing threats to its stability. These norms are going to cripple communication and trade among the countries. Along with it, these trends are likely to replete the world with skirmishes, and conflicts among the nations. Consequently, leaving the world into turmoil, adversity, poverty, and wars.

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