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International Law

China’s Assertive Encroachments in South China Sea

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The month of July 2019 witnessed China assertive postures undermining the Permanent Court of Arbitration ruling (PCA verdict of July 2016) which dismissed China’s claims of sovereignty on the South China Sea islands. It has forcefully reiterated its illegal ‘sovereign’ jurisdiction on South China Sea and the adjoining areas. On July 19,Vietnam’s Foreign Ministry’s spokesperson Le Thi Thu Hang has asked China to end violations of Vietnamese Exclusive Economic Zone (EEZ) and withdraw its survey vessel Haiyang Dizhi 8 from Vietnam’s waters.  China has carefully undermined the UNCLOS and has sent its survey ship in Vietnamese EEZ. The purpose was to earmark and assert its ‘self-declared rights’ on the waters closer to the other claimants. Earlier, this month China Coast Guard ship Haijing 35111 threatened Vietnamese vessels by maneuvering dangerously. The Vietnamese supply ships were providing logistical support to Japanese-owned oil rig- the Hakuryu-5 which was leased to Russian oil company Rosneft. The location of the incident was 370 km off Vietnam’s southeast coast in exploration Block 06.1. Rosneft, has leased Japanese rig to explore oil and gas in Vanguard Bank. It is also involved in Block 05.3/11, and has been developing the Nam Con Son Pipeline project in Vietnam.

The recent activity of oil and gas exploration undertaken by Rosneft started on May 12, 2019.Addressing Chinese threats, Russian foreign ministry spokesperson Dmitry Peskov had earlier stated that “As far as we know, the company has already made a statement that it works exactly in line with the obtained licenses”. A Russia jurist has also asked Vietnam to seek international support to protect its interests and rights in the South China Sea. In response to Kremlin statement, China’s foreign ministry admonished saying “any state, any organization, any company or individual cannot, without obtaining permission from Chinese authorities, carry out exploration activity in the maritime area under China’s sovereignty”. This is complete disregard for international law and norms governing international order at sea.

For China, Vietnam has always been a challenge because of its close ties with major powers such as the US, Russia, Japan and India. The group sail which was undertaken by India, Japan, Philippines and US in early May 2019 further increased the anxiety of China. During the group sail the four countries undertook activities such as underway replenishment, formation manoeuvering, and cross-deck flying. Tensions between China and Vietnam escalated when Haiyang Dizhi 8(Chinese survey ship) conducted a 12-day survey of waters escorted by the three Chinese coastguard vessels as China has tried to intimidate the international community, and the Vietnamese navy to accept its suzerainty in those waters. The incident has been deplored and criticized by the US National Security Adviser Michael Bolton. He said ‘China’s coercive behavior towards its Southeast Asian neighbors was counterproductive and threatened regional peace and stability’. US state department has called China’s recent incursions as “bullying behaviour”. Chairman of the US House Committee on Foreign Affairs Eliot L. Engel in a strong statement said, “I stand with Vietnam and our regional partners in condemning this aggression. The international community must continue to uphold the rules-based order and international law. I call on China to immediately withdraw any and all ships from the territorial waters of its neighbors, and to put an end to these illegal bullying tactics”.

Strategic experts have often referred to this strategy of China as the salami slicing approach but the recent encroachment and area access denial activity along with three months’ fisheries ban and using its naval ships to earmarked its self-proclaimed ‘sovereign’ maritime waters is dangerous for the freedom of navigation and the security of the maritime trade. This time China’s salami slicing has gone a step further and it is ‘Hammer and Tongs’ approach where hammer follows the tongs to meet its strategic objectives. The history of developments in South China Sea in the last decade has been dangerous and at times leading to minor skirmishes. This involves the stalking of the US ships in 2009 and China’s use of fishermen militia to meet its dual objectives of patrolling through civilian means and using force to impose its will. In 2011, Chinese patrol boats intruded 120km near the Vietnamese coast and snapped a submerged cable drawn by Binh Minh 02(the survey ship). Further, these assertive maneuvers have led to anti-Chinese riots in Vietnam in the past and also attacks on the Chinese manufacturing units. Earlier in 2019 China has used fishing boats militia to harass US ships in South China Sea.

From Vietnam’s perspective, the recent developments have aggravated tensions because of ASEAN’s inaction and US ambiguity about these islands. In the current context there are three possibilities which need to be undertaken by major dialogue partners such as India, the US, Japan and Korea along with Australia. Firstly, it should strengthen its dialogue with dialogue partners on specific issues of security to a certain extent, defining South China Sea as special case. Secondly, the non-traditional security issues have crippled ASEAN in terms of addressing core security issues and developing a politico –security community. Thirdly, ASEAN nations should recognize status quo related to the islands occupied by the claimants, and work towards unilaterally adopting the Code of Conduct in South China Sea.

The recent draft agreement on Code of Conduct (CoC) is irrelevant as China never takes any international or regional obligation in word and spirit. China, on its part, has enforced de facto sovereignty over Paracel Islands. The basic issue is the resources both energy and mineral resources in South China Sea, and given the fact that Blue economy is gaining traction the crisis might further aggravate. Chinese fishermen militia has been matched with Vietnamese fishing community are vying for the third richest fishing ground in the world. The problem so gets compounded with the inactivity of the multilateral organizations, confusion among the claimant states, and the possibility of China exploring the bilateral solution with countries such as Malaysia and Brunei.

The pertinent question which arises at this juncture is whether the international community and ASEAN would do anything to resolve the crisis or would wait for the Chinese diktats on the subject with occasional assurance of peace and tranquility in the strategic waters. The major players should undertake group sail on a regular basis and also surveillance sorties to create conditions and make China understand that any provocative measures would draw international attention and also global powers. As already countries such as France, UK and Canada have expressed concerns related to the developments in South China Sea. The other issue is whether these activities undertaken by China dilutes the provisions of Article 2(e)- ‘Renunciation of the threat or use of force’ of Treaty of Amity and Cooperation(TAC) which is a necessary prerequisite for engagement with ASEAN. China entered TAC with ASEAN in 2003.  If it is so then the discussion should be started in the ASEAN and its associated organizations. Any dialogue partner which violates the provisions should be removed from the organization.

For Vietnam it is imperative to look for possibilities to protect its interest in the EEZ and not only statements in Non-Aligned Movement but the issue must be raised at UN also. The questions are that whenever it comes to implementing the UNCLOS related to P-5 countries and the provisions thereof, the international community looks the other way. Vietnam also should seek attention of other dialogue partners and brief the envoys of the dialogue partners on this. Countries like India, Japan, the US and Australia would have to activate Quad to take   proactive and responsible approach. Otherwise not only freedom of navigation but also over flight would be hampered in a ‘hammer and tongs’ way. China must also not forget that coaxing and coercive maneuvers have at times forced smaller countries to engage and invite big players and lease those bases.

Pankaj Jha is faculty with Jindal School of International Affairs, O P Jindal Global University, Sonepat. He can be reached at pankajstrategic[at]gmail.com

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International Law

Russia-Ukraine War, China and World Peace

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image source: war.ukraine.ua photo: Vadim Ghirda

On May 3, when asked about the possible causes of the Ukrainian tragedy, His Holiness Pope Francis speculated about an “anger” probably “facilitated initially by NATO’s barking at Russia’s door. I cannot say whether this anger was provoked, but it was probably facilitated”.

What do the Pope’s words mean? In short, they mean that in international relations – of which the Holy See is Master of the Art – two things count: respect for the other and ignorance. The former is to be always placed as a founding element of peace, the latter is to be eradicated, especially in countries like Italy and in many others, as a factor of war.

Why was the Soviet Union respected and why the same respect and consideration is not owed to Russia? Why with the Soviet Union, after the normalisation of the Prague Spring, did a still divided but wise Europe (today, instead, united only by the banks’ and bankers’ money) and a sharp-witted West, with Russia’s agreement, launch the Helsinki Conference on Security and Cooperation in Europe? Why instead did a powerless Europe, a semi-colony of the United States of America – with the UK as the 51st star on its flag – together with the White House, pretend not to see what was happening in Ukraine? Why did they turn a blind eye to this conflict, which has been going on since 2014, and fomented the rise to power of people who, by inciting hatred against Russia, were under the illusion that NATO would come to their aid, turning Europe into a pool of blood for their purposes?

Do some people probably believe that Russia is still that of Yeltsin, ready to open up – in every sense – to the first master coming along? These are the cases in which respect is lacking and ignorance triumphs.

As to an example of ongoing and consistent respect in foreign affairs, it is useful to comment on a recent speech delivered on April 21 by China’s President Xi Jinping, which developed several points.

He pointed out that, for over two years, the international community has made strenuous efforts to meet the challenge of COVID-19 and promote economic recovery and development in the world. He added that the difficulties and challenges show that the international community has a shared future for better or for worse, and that the various countries must strive for peace, development, and win-win cooperation so as to work together and tackle the different problems that gradually emerge on the scene.

With a view to facing the health emergency, China has provided over 2.1 billion vaccine doses to over 120 countries and international organisations and it will continue to make the pledged donations of 600 million doses to African countries and 150 million doses to the countries of the Association of South-East Asian Nations (ASEAN) to proactively help bridge the vaccine gap.

With specific reference to the economic recovery, President Xi Jinping pledged to keep on building an economy open to the world, strengthening macroeconomic policy coordination and preserving the stability of industrial and supply chains, as well as promoting balanced, coordinated and inclusive development globally. He said: “People need to be put first and development and social welfare must be prioritised. It is important to promote pragmatic studies in priority areas such as poverty reduction, security, food, development finance and industrialisation, as well as work on solving the issue of unbalanced and insufficient development, and move forward by establishing job creation initiatives.”

With regard to the recent war clashes, President Xi Jinping deems necessary to jointly safeguard world peace and security. I wish to add that the Cold War-style mentality – what is happening in Ukraine, i.e. the West disrespecting Russia, considering it an enemy as in the past, but not as strong as in the days of the CPSU – can only undermine world peace. Hegemonism aimed at conquering Eurasia – as the land that holds the remaining raw materials on the planet – and the policy of the strongest country can only undermine world peace. The clash of blocs can only worsen the security challenges of the 21st century.

Why, while the Warsaw Pact (of which the People’s Republic of China was never a member and never wanted to be a member) was dissolved, did the same not happen with NATO? China has always wanted to promote world peace, never wanting to be part of aggressive and barking alliances.

China pledges to advance the vision of common, integrated, cooperative and sustainable security and to jointly preserve world peace and security. It pledges to respect all countries’ sovereignty and territorial integrity; to pursue non-interference in other countries’ internal affairs, and to respect the development path and social system chosen by peoples. It pledges to abide by the aims and principles of the UN Charter; to reject the warmongering mentality (opposing the good countries by default vs. the bad ones conventionally); to oppose unilateralism and to reject the policy of bloc confrontation. China takes all countries’ security concerns and legitimate interests into account. It pursues the principle of indivisible responsibilities and builds a balanced and effective security architecture. It opposes one country seeking its own security by fomenting insecurities in the others. China seeks dialogue and consultation, as well as peaceful solutions to inter-State differences and disputes. It supports all efforts for the peaceful settlement of crises. It refrains from double standards and rejects the arbitrary use of unilateral extraterritorial sanctions and jurisdictions.

It is crucial to adopt a comprehensive approach to maintain security and respond together to regional disputes and planetary challenges such as terrorism, climate change, cybersecurity and biosecurity.

Global governance challenges must be addressed together. The world countries are on an equal footing when it comes to sharing fortunes and misfortunes. It is unacceptable to try to throw anyone overboard. The international community is currently a sophisticated and integrated device. Removing one of its components makes it very difficult for it to function, to the detriment of the party that is deprived by others of its own guarantees that call into question the very existence of a State – such as trying to deploy nuclear warheads a few kilometres from a capital city.

Only the principles of broad consultation, joint contribution and shared benefits can promote the common values of humanity, foster exchanges and inspire reciprocity between different civilisations. No one should believe to be better than another by divine grace or manifest destiny.

True and genuine multilateralism must be pursued and the international system centred on the United Nations and the world order based on international law must firmly be preserved. Great countries, in particular, must set an example in terms of respect for equality, cooperation, credibility and the rule of law to be worthy of their greatness.

In ten years of President Xi Jinping’s leadership, Asia has maintained overall stability and achieved fast and sustained growth, thus creating the “Asian miracle”. If Asia does well, the whole world will benefit. Asia has continued to strive to develop, build and maintain its strength, i.e. the basic wisdom that makes the continent a stabilising anchor of peace, an engine of growth and a pioneer of international cooperation.

These achievements come from as far back as the aforementioned Chinese refusal to join aggressive military blocs. They are based on the Five Principles of Peaceful Coexistence drafted by Prime Minister Zhou Enlai on December 31, 1953, published on April 29, 1954, and reaffirmed at the Bandung Conference on April 18-24, 1955: (i) mutual respect for each other’s territorial integrity and sovereignty; (ii) mutual non-aggression; (iii) mutual non-interference in each other’s internal affairs; (iv) equality and cooperation for mutual benefit; (v) peaceful coexistence.  

They are based on the Eight Principles for Foreign Aid and Economic and Technical Assistance proposed by the aforementioned Zhou Enlai before the Somali Parliament on February 3, 1964, which became the emblem of China’s presence in Africa: (i) China always bases itself on the principle of equality and mutual benefit in providing aid to other nations; (ii) China never attaches any conditions or asks for any privileges; (iii) China helps lighten the burden of recipient countries as much as possible; (iv) China aims at helping recipient countries to gradually achieve self-reliance and independent development; (v) China strives to develop aid projects that require less investment but yield quicker results; (vi) China provides the best-quality equipment and materials of its own manufacture; (vii) in providing technical assistance, China shall ensure that the personnel of the recipient country fully master such techniques; (viii) Chinese experts are not allowed to make any special demands or enjoy any special amenities.

Over the last ten years President Xi Jinping has successfully applied the Chinese doctrine in international relations, following and implementing his country’s multi-millennial traditions of diplomacy. ASEAN’s central place and role in the regional architecture has been strengthened in Asia, preserving the order that takes all parties’ aspirations and interests into account. Each country, whether large or small, powerful or weak, inside or outside the region, contributes to the success of Asia’s development, without creating war frictions. Each country follows the path of peace and development, promotes win-win cooperation and builds a large family of Asian progress.

The ASEAN countries are the following: Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar (Burma), Philippines, Singapore, Thailand, Vietnam (Papua New Guinea and East Timor as observers).

Furthermore, the fundamentals of China’s economy – its strong resilience, huge potential, ample room for manoeuvre and long-term sustainability – remain unchanged. They will provide great dynamism for the stability and recovery of the world economy and wider market opportunities for all countries.

The People’s Republic of China will be fully committed to its new development rationale. It will step up the establishment of a new growth paradigm, and redouble its efforts for high-quality development. China will promote high standards; expand the catalogue for the creation of new computer software; improve investment promotion services and add more cities to the comprehensive pilot programme for opening up the service sector.

China will take concrete steps to develop its pilot free trade zones and the Hainan Free Trade Port will be in line with high-standard international economic and trade rules and will move forward with the institutional opening process.

China will seek to conclude high-level free trade agreements with more countries and regions and will proactively endeavour to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Digital Economy Partnership Agreement (DEPA).

China is moving forward with the Silk Road (Belt and Road) cooperation to make it increasingly high-level, sustainable and people-centred. China will firmly follow the path of peaceful development and will always be a builder of world peace, as well as a contributor to global development and a defender of the international order.

Over the last ten years, under President Xi Jinping’s leadership, the People’s Republic of China has been following the old Chinese saying: “Keep walking and you will not be discouraged by a thousand miles; make steady efforts and you will not be intimidated by a thousand tasks”.

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International Law

The More Things Change…

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The brutality of ethnic cleansing is complete.  It does not distinguish between mother and son, young and old, child or adult.  It goes about its gruesome business without conscience or moral compensation.  It is the conversion of man into an unthinking beast.  It is Putin, Zelensky, Modi and Xi Jinping … all rolled into one.  It is us.  The seed is there, needing only fertile soil to germinate. 

The EU announces more aid to Ukraine — mostly military aid; the US announces more aid to Ukraine — mostly military aid.  The Ukrainians saying ‘we will never surrender’ continue to fight.  The Russians asking for talks are not backing down.  Ukraine’s real value to the world is as an exporter of grain which helps to stabilize grain prices.  Feeding a war therefore, runs counter to such stability.

On the heels of covid and its inflationary fallout, who wants a rise in food prices?  Not India, not Africa, not the EU and Russians are already feeling the pinch.  Perhaps grain exporters in North America could be an exception.  Yet at what cost?

According to the UN Secretary General, Antonio Guterres, the Security Council failed to prevent the war or to end it.  How can it when the most influential member and its European allies are busy funding it?

Human strife is displayed on almost every continent.  Stone throwing at ultra-nationalists by Palestinians after Friday prayers is a routine accompanied sometimes by tragedy.  One side provokes, the other side retaliates.  Stones are thrown, fights  breakout.  The authorities respond and more Palestinians are killed — fifteen last Wednesday.  Is this the big story in Israel?  Of course not.

A TV report accused millionaire Naftali Bennet, the current prime minister, of extravagant expenditure from the public purse at his home, which currently serves as his official residence.

Mr. Bennett disclosed that $26,400 of taxpayer money was spent on his home each month including a $7,400 food bill.  His defense avers that his conduct is within the rules and that his predecessor Benjamin Netanyahu spent, on average, $84,300 per month during his tenure.

Noting his efforts at parsimony, he pointed out he did not employ a cook as he is entitled to.  Instead, the family sent out to restaurants, presumably the best ones, to have food delivered.  Sensitive to the criticism, he states he will henceforth pay for all the food from his own picket.

Sara Netanyahu, his predecessor’s wife, had to admit misusing public funds during a similar scandal and was obliged to pay a $15,000 fine.  The prime minister is paid $16,500 per month — average monthly salary in Israel is $3,500.

Plus ça change …

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International Law

China, the Arctic, and International Law

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arctic silk road

The Arctic involves the interests of several major international actors, and climate change, which necessitates the search for more resources and increases the availability of resources in the region, makes the region more important than ever. In this regard, states are divided into “Arctic states” and “non-Arctic states,” with the former having territorial sovereignty and jurisdiction over the region and the latter not. Nonetheless, non-Arctic states have certain rights, such as freedom of navigation in the Arctic states’ EEZs, as granted by the UN Convention on the Law of the Sea (Xinmin, 2019). Parts of the region that are not under the sovereignty of any state are referred to as the “common heritage of mankind.” Because of its appeal, the region attracts states that are not in the Arctic Circle, with China being one of the most interested. China’s interest in the region can be explained by the country’s need for more resources. First, food security issues are likely to arise in China in the near future, and they must be addressed. Fish resources in the South China Sea have been steadily declining, and China must replace them. Second, China, which relies heavily on imported energy sources, is aware of the growing hostility toward itself and may face a blockage of vital energy resources if the situation worsens. Access to more Arctic sources may assist China in diversifying its risk (Francis, 2020).

Initially, the United States, Canada, and Russia saw China’s interest in the region as a threat to their territorial sovereignty. China joined the Arctic Council as an observer after officially recognizing Arctic states’ territorial sovereignty over the region (Arctic Council, 2021). Observers have limited rights in comparison to member states, which are all littoral states. Observers, for example, do not have the right to vote, and their participation in projects is not always possible (Ghattas, 2013). Nonetheless, the UN Convention on the Law of the Sea (UNCLOS) allows China to participate in fisheries decision-making processes, specifically the catch limit (Francis, 2020). In fact, China participated in the Agreement to Prevent High Seas Fisheries in the Central Arctic Ocean to ban commercial fishing for 16 years in 2018 (Francis, 2020). In addition to the UN Convention on the Law of the Sea, relevant treaties include the UN Charter, International Maritime Organization rules, environmental treaties, and domestic laws of Arctic States (Xinmin, 2019).

In 2018, China published a White Paper outlining its Arctic ambitions. According to the White Paper, China is an active participant in Arctic governance and will remain committed to all relevant treaties and agreements. China has stated unequivocally that it has no intention of challenging any Arctic state and intends to cooperate in the peaceful use of the region (Xinmin, 2019). The White Paper was most memorable for China’s self-description as a “near-Arctic” state, emphasizing China’s geographical proximity to the Arctic Circle. It may imply that China associates itself with a new category that could be used to legitimize its actions in the region. However, former US State Secretary Mike Pompeo criticized this statement, claiming that there were only Arctic and non-Arctic states, implying that the category of “near Arctic” did not exist and did not entitle China to any special rights. Although other Arctic states did not respond positively to the statement, several of them, including Canada and Russia, indicated a willingness to cooperate with China and eventually accept Chinese investments. China is eager to invest in natural resource extraction, scientific research, and infrastructure. China has already invested more than $90 billion, and one of its major projects is the “Polar Silk Road,” an extension of the BRI.

As of now, China has not committed any serious violations of the law in the Arctic. However, experts are divided on whether China will violate international law in the Arctic. One of the arguments is that China is likely to violate the law because it has already violated it in numerous cases, including the South China Sea dispute. Despite the fact that the United Nations has labeled China’s actions in the South China Sea as aggressive, China has largely ignored criticisms. (Francis, 2020). Therefore, supporters of the first argument believe that there will be nothing to stop a country from breaking the law if it prefers to ignore international institutions in some cases. Another argument is that the situation in the Arctic is vastly different from the situation in the South China Sea, and thus it is unreasonable to expect China to engage in similar activities (Buchanan & Strating, 2020). First, there are other great powers in the Arctic region, such as Russia and the United States, which creates a balance of power. Second, the Arctic is governed harmoniously by the Arctic Council through a series of agreements and treaties, whereas the South China Sea has long been a source of contention. Finally, while China is very close to the South China Sea and could potentially expand its territory there, it is not a littoral state in the Arctic and would not be interested in claiming territory in such a remote and logistically difficult region.

For the time being, the second argument appears more convincing because China has been following the law in the region. However, it is difficult to predict how it will act in the face of adversity. Climate change appears to be ongoing, and global warming is likely to allow access to even more resources in the Arctic. Furthermore, climate change is one of the factors that is expected to contribute to food insecurity (WEF, 2022). In that case, competition for the Arctic will inevitably intensify. China has already made investments in the region and declared itself a “near-Arctic state,” implying that it has long-term plans for the region. Therefore, China’s demands and actions need to be taken seriously. Although cooperation in the Arctic is encouraged, tolerance for violations of international law in the region by any state may weaken stability and increase the likelihood of conflict in the long run. To be able to rise smoothly in the Arctic, China must adopt an inclusive strategy and think beyond its own interests, as several major international actors have stakes in the matter (Liu, 2020).

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