Nestled at the southern tip of the Iberian Peninsula and bordering Spain is the British Overseas Territory of Gibraltar. As with Hong Kong, Gibraltar was ceded to Britain following a period of conflict, and the cessation of which became a geo-political anomaly as the borders of the British Empire began to recede like the hairline of a fatigued patriarch. Whilst the sovereignty to Hong Kong was transferred to China in 1997, Gibraltar remains under British sovereignty to this day. The timing of the political circumstances that beset the two territories respectively suggests that their differing denouements at the dusk of empire were hands dealt by fate.
During the War of the Spanish succession in 1704, an Anglo-Dutch fleet captured Gibraltar from the Spanish, who subsequently ceded Gibraltar to Britain in perpetuity under the Treaty of Utrecht in 1713. Under the dictatorship of Francisco Franco, Spain renewed its claim to sovereignty over Gibraltar in the 1950s, and began lobbying in 1963 for the handover of Gibraltar before the UN Special Committee on Decolonization. This culminated in the 1967 Gibraltar sovereignty referendum, in which 99.19% of Gibraltarians voted to remain under British sovereignty. In the years leading up to the referendum, the prospect of Gibraltar becoming Spanish would not have been the most appealing for Gibraltarians. For instance, economic liberalisation in 1959 which was brought on by Spain’s close brush with bankruptcy was not accompanied by political reform. Faced with the possibility of Gibraltar being transferred to Spain at the height of the Franco regime, the decision to conduct a referendum and the referendum’s result were rather unsurprising.
Like the Treaty of Utrecht was to Spain, the unequal treaties between Britain and China – which led to the cessation of Hong Kong after the Opium Wars – had always been a thorn in China’s side. Despite showing interest in the sovereignty of Hong Kong, China adopted a more diplomatic approach in contrast when the PRC obtained its seat in the UN in 1971. In a letter to the UN Decolonization Committee in March 1972, Chinese UN representative Huang Hua stated that it was within China’s sovereign right to settle the questions of Hong Kong (and Macau), which will “be settled in an appropriate way when conditions are ripe.” The 25 year diplomatic silent treatment between the US and China had only just ended in the month prior, when President Richard Nixon made his historic visit to Beijing. The end of the Cultural Revolution was not yet in sight, and the world was anxious to see how China would be re-introduced into the global community. Had China demanded the transfer of sovereignty to Hong Kong at that time, would Britain have held a similar referendum in Hong Kong? If so, what would have been the result of the referendum in light of the prevailing political conditions in Hong Kong and China? This hypothetical scenario provides provoking food for thought.
Back on the other side of the world, an interesting development after the 1967 Gibraltar sovereignty referendum was the passing of the Gibraltar Constitution Order in 1969. The order in its Preamble contains the assurance that “Her Majesty’s Government will never enter into arrangements under which the people of Gibraltar would pass under the sovereignty of another state against their freely and democratically expressed wishes.” In effect, the question of sovereignty to Gibraltar became one that only its people may answer. Indeed, this jurisdiction came into play when Gibraltarians voted against the idea of shared sovereignty between Britain and Spain in the 2002 referendum. This was never to be in the case of Hong Kong. It is arguable that this constitutional distinction between Gibraltar and Hong Kong was what formed the basis of their divergent experiences in the post-colonial era.
When Governor Murray MacLehose raised the question of Hong Kong’s status with Deng Xiaoping in 1979 as the end of the New Territories lease crept ever closer, that was the beginning of strictly binary negotiations between two governments. Neither parties were obligated to consult the views of any third party. Naturally, any suggestion for a referendum in Hong Kong before negotiations led to the 1984 Sino-British Joint Declaration was rejected. By then, however, the state of things was different. In 1979, US President Jimmy Carter granted China full diplomatic recognition and acknowledged the “One China” policy. As Britain and China exchanged diplomatic visits, diplomatic relations between the two countries looked promising. With the introduction of Deng’s socialist market economy and the promise of “one country, two systems”, it was foreseeable to a certain extent that Hong Kong would continue to prosper after 1997. The conditions seemed ripe. If a referendum was held in any event in the lead up to the Joint Declaration, what would the people of Hong Kong have decided?
Putin, Xi, the ICC, and the Demise of Global Judiciary
Authors: Roman Kusaiko and Alexey Ilin*
On March 17, 2023, the International Criminal Court (ICC) issued an arrest warrant against Russian president Vladimir Putin. The press release stated that Prosecution’s application was filed on the February 22, 2023, while the existence of the warrants was disclosed on March 17, 2023. This is the first time the ICC releases a warrant against a sitting president. Moreover, it immediately preceded the visit to Moscow by Chinese President Xi Jinping, which took place on March 20-22, 2023. While the warrant is expected to force Russia and its leader into submission, the end result may be the erosion and eventual demise of the universal criminal justice.
The International Criminal Court was established by the Rome Statute (done July 17, 1998, in force July 1, 2002) to prosecute the most serious crimes of international concern, such as genocide, crimes against humanity, war crimes, and the crime of aggression (Rome Statute art. 5). The ICC has three main advantages against its predecessors – the ad hoc tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). First, it is a permanent court. Second, it is based on an international treaty and not the United Nations Security Council resolution, which gives it more legitimacy. Third, the ICC jurisdiction is not limited to a particular country or case – the Court can prosecute a crime if it was committed either by a national of a State Party, or on a State Party’s territory. Generally, officials of the non-party states cannot be prosecuted, but even this barrier can be overcome if the situation is referred to the Prosecutor by the UN Security Council (Rome Statute art. 13(b)).
France and the UK are the only State Parties to the ICC among those countries that legally possess nuclear weapons (under the 1968 Non-Proliferation Treaty). China, India, Pakistan and North Korea neither signed nor acceded to the Rome Statute while the U.S., Russia, and Israel officially refused to ratify the treaty. The attitude towards the Court reveals a divide in states’ perception of international criminal justice. Countries with extensive military capabilities decided not to delegate any of their judicial power to an external international institution. The rest of the countries delegated their authority to an international judiciary seeking justice in case any major crimes are committed against them.
Since its inception, the Court’s authority has been facing challenges, especially from the U.S. The latter has a long history of complicated relations with the ICC, from open hostility to the recent bipartisan support. Most prominently, the “Hague Invasion Act” grants the U.S. the right to use military force to liberate any U.S. or allied country’s citizen being held by the ICC. The existence of such methods undermines the authority of the Court and also manifests that the U.S. and its allies are “out of judicial range” and thus not accountable before the international community.
The ICC has been repeatedly stumbling in its attempts to investigate the most serious crimes in the areas where the U.S. and their allies conducted their military operations. Between 2014 and 2020, the ICC investigated the war crimes in Iraq (willful killing, torture, and rape) committed by the armed forces of America’s closest ally – the UK. Nevertheless, the investigation was closed in 2020 raising criticism from European institutions, non-government organizations and multiple media sources. Some critics claimed the ICC’s refusal to hold the UK accountable discredited the Court’s authority. Afghanistan has been a State Party to the ICC since 2003, but the Court has not taken any decisive actions in this country until October 2022, when its Pre-Trial Chamber authorized the Prosecution to resume its investigation of war crimes. This move has been first rejected in 2019, and then deferred in 2020. Likewise, the ICC Preliminary Investigation team has been halting the prosecution of war crimes committed in Syria for more than three years despite the ample evidence.
At the same time, reasonable grounds against Vladimir Putin for organizing an unlawful deportation of children were found in less than a month – an unprecedented speed. The disclosure of the ICC warrant on March 17, 2023 suspiciously coincided with the announcement of Xi Jinping’s official visit to Moscow. The announcement was made only on the 17th of March, 2023, with the agenda reported by both Chinese and Russian sources. It is hard to believe in such a coincidence, especially after subsequent remarks by the U.S. Secretary of State Anthony Blinken confirmed that the warrant targeted Chinese leader’s visit. While some media claimed Putin’s days are now numbered, the others were more skeptical referring to the West’s “deafness” for their own atrocities in Iraq and Afghanistan.
The ICC warrant sends several signals to the Russian state, society, and beyond. The first one is to oust Vladimir Putin from the office to improve relations with the West. The second one is for the Russian elites: as long as Putin is in power, their assets will be always under threat of sanctions and even confiscation. The third one is for the other world leaders: leaving Putin alone at the table will not be enough – legal actions should be taken against him. The Russian leader should become a pariah. One may argue, that such a strategy could be partially successful in 2014, but an open Chinese criticism of the warrant demonstrates that it will have serious limitations in 2023.
Vladimir Putin will not willingly step down, but the warrant will push his government to build parallel institutions with friendly or non-aligned countries. Russian State Duma Speaker Vyacheslav Volodin proposed to pass an act similar to the “Hague Invasion Act.” In addition, he prompted the Russian government to sign bilateral agreements which will guarantee the denial of the ICC authority. Moreover, the depth of the issues discussed between Putin and Xi suggest that Shanghai Cooperation Organization (SCO) could become an “umbrella” for alternative global institutions, including the judiciary branch. The SCO already hosts regular meetings between the chairs of the Supreme Courts. As more countries are willing to join in, it may become a respected institution of transnational justice. This development, amplified by U.S. unaccountable posture, will bury the once noble idea of global judiciary in The Hague. The ICC will remain what Rwandan President Paul Kagame called it, “the court for Africans and poor countries.”
*Alexey Ilin, Ph.D. candidate at Shanghai Jiaotong University.
Should We Claim We Truly Understand International Politics?
When the guns roar, the muses are silent, an ancient Latin proverb tells us. This aptly describes how convincing our attempts to explain what is happening in international politics are, from the point of view of the existing apparatus of its rational understanding. For those who try to pretend to understand how international relations evolve, the saddest casualty of current events is the practice of interaction between states, which jettisons all the pre-existing notions at our disposal.
This applies to both academic scholars and those who approach the assessment of political reality from a purely intuitive point of view. Any intuition inevitably fits into the framework of our own worldview, which, in turn, has long been systematised in one way or another within the framework of the science of international relations. Namely, it suffers the greatest defeat of all social disciplines at moments when states and leaders base their actions in feelings, purely individual ideas and moral character. Individuals enter the historical arena, making decisions within the framework of a subjective understanding of the world around them, intellectual abilities or corporate interests.
Conceptualisation, at least on an analytical or on an intuitive level, will be possible later – when the dust of battles has somewhat settled, and the theorists will have firm support in the person of the winners, whose interests will become the basis of a new international order. It has always been like this – the science of international relations has consistently followed practice, guided by only one goal – to understand why this or that power, in the end, benefitted the most from the consequences of a general tragedy. In our case, however, this won’t happen, or at least not soon. Until then, any aspirations to understand what is really happening in international politics will end up with rather monotonous judgments, the only difference between which is how open is the attempt to interpret reality in favour of the interests of one of the fighting parties.
Each political scientist becomes a soldier of his country, and the space for relatively impartial analysis disappears – even those who claim to be impartial inevitably finds themselves within the framework of an interpretation that serves the interests of one of the warring parties. The chroniclers would be relatively independent amid modern conditions, however, the facts now are a very relative thing, easily amenable to extremely convincing falsification. Even playing the role of a holy fool is impossible – in conditions where shells whistle overhead, his innocent bleating always turns out to promote the advantages of one of the opponents. Like the light of the sun or the direction of the wind.
In fact, any of our reasoning that purports to reflect an abstract “understanding of reality” becomes like this. The fact is that we still find examples for comparison in the historical experience which are also the most comfortable for one of the parties participating in the current conflict. Regrets about the collapsed world order or globalization are, of course, humanly understandable. However, they first inevitably send us in the direction of searching for ways to restore something like the lost era, and its illusion of relatively evenly distributed prosperity. This, we agree, fully reflects the interests of the Western countries and is somewhat inconsistent with the way Russia, China and most developing countries would like to see the world. Second, even our conceptual apparatus and categories, which technically have the possibility to construct so-called ideal schemes of the future, were formed within the framework of the international order, where for 500 years a rather narrow group of powers occupied the leading positions. Therefore, when speaking of the need to restore order, we are already at risk of becoming defenders of the interests of status quo powers – our categorical apparatus is still practically undeveloped in terms of a different, more just, from our point of view, international order.
It is not surprising that in a situation where thinking about foreign policy and international relations is a more common and ancient profession, fellow intellectuals have overnight turned into mouthpieces of information warfare. It is sad to read the comments of colleagues representing the realist direction of the science of international politics in the United States: the overwhelming majority of their opponents have completely lost the ability to take any critical view of the behaviour of their homeland and its closest allies. In other words, American, and Western in general, political science has clearly defined which side of the front it is fighting on and will be able to return to a more balanced discussion only after the active phase of the confrontation between the powers is over.
The use of the existing theoretical apparatus for assessing the international reality resembles a funny anachronism, no matter which of the theories we turn to. The reason is that they are also the product, first and foremost, of a specific and geographically localised historical experience, and only secondly of attempts to subordinate social activity to some ideal schemes based on our ideas about universal morality. Powers representing such a variety of political civilizations have now entered a world arena that one cannot rely on, including a systematic understanding of the nature of relations between them. All existing theories were created in a very simple world, where it was always easy to understand the basis of the position of a state within the framework of social relations of its kind.
Each of the nation-specific ways of interpretation cannot claim to be more than a systematisation of worldviews inherent in an individual, rather unique, culture. It is, of course, useful to create, for example, a Russian theory of international relations amid such conditions. First, it will somewhat reduce our dependence on Western concepts, which is extremely good in itself. Second, moving along this path will allow one to understand yourself a little more. This is especially important for Russia, since awareness of self-worth for our political culture is much more important than external recognition. However, in terms of being able to understand international politics in general, we still will not get very far – we will just become the authors of another original view.
Finally, practically all powers whose capabilities are sufficient to pose a potential threat to life on the planet, do not now even have a relatively formed idea of their own ideal future. The Americans are trying to pretend that the return of hegemony over the world will solve their internal development problems. However, this approach causes concern in principle, since moving forward while looking behind you is liable to lead to a fall. Russia is also in search of a state where it can feel self-worth, and the conflict with the West is, in addition to eliminating military-political imbalances, the basis for a better understanding of itself, outlining the image of the future in conditions where it is no longer possible to continue life in the old way. Of all the great powers, only China confidently says that it knows what future it is aiming for. But here, too, we have reason to think that the Celestial Empire is only approaching the need to provide answers to questions about a suitable position for it in world politics and economics.
The position of Europe is dramatic. It is aware of its rapidly declining strength and is increasingly choosing the lesser of two geostrategic evils, from the point of view of the modern European elite. Such behaviour poses a challenge to diplomats, since the choice of the European elite consists of a conscious rejection of international agency of their countries. Under such conditions, not only our ability to discuss international politics seriously in an academic audience freezes, this politics is itself entering a peculiar and very static mode of operation. In fact, it only seems to us that now history is developing rapidly – in fact, it has stopped, and its millstones continue to idle, grinding tens of thousands of human lives.
From our partner RIAC
The New High Seas Treaty: Takeaways and answering the hard questions
On 04 March, Rena Lee, President of the UN Intergovernmental Conference on Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ), announced that “the ship has reached the shore,” referring to the last compromise and successfully negotiated to stumble block of this historic treaty, which marked the apogee of over two decades of negotiations to protect the ample internationally ungoverned space of the ocean. The last time the countries came together to gather political will during geopolitical tensions to protect biodiversity was on 01 December 1959 during the cold war to declare Antarctica a place for peace and science.
The draft agreement of the ‘The New High Seas Treaty’ emphasises the need to address the planet’s largest unregulated biosphere for the sustainable use of resources and biodiversity protection. It covers the expansive portion of the ocean beyond national boundaries and will provide a legal framework for designating vast marine protected areas (MPAs) to protect against marine life degradation and sharing of resources. It is necessary to identify, monitor and regulate vulnerable areas to address the commitment of protecting 30 Percent by 2030 endorsed by COP 15 in the Kunming-Montreal Global Biodiversity Framework in December 2022. Exit options and other unique provisions for the Arctic or China Sea and other geopolitically tense areas are also mentioned to avoid disagreements and conflicts within the agreement.
The stumbling block of this treaty was how to appropriately share marine genetic resources (MGR) and wealth, which separated the Global South and North. Due to their potential for application in pharmaceuticals and cosmetics, MGR, which are made up of the genetic material of bacteria, corals, krill, seaweed, and deep-sea marine sponges, are gaining more scientific and commercial interest.
The agreement is legally binding and establishes a new global authority for the high seas, complete with an executive body called “COP,” a secretariat, and a scientific council. It is based on certain principles and approaches like the polluter-pays principle, the principle of the common heritage of humankind, the freedom of marine scientific research, and other freedoms of the high seas.
In addition, an approach for maintaining and restoring ecosystem integrity, including the carbon cycling functions that support the ocean’s role in climate while also increasing ecosystems’ resilience, is practiced. Signatories are also tasked with conducting environmental impact assessments before exploitation, exchanging marine technology with other littoral states, and monitoring the space for other threats.
What are the High Seas and the threats present on them?
States currently govern up to only 200 nautical miles of seas from their coasts, delineated by the UN Convention on the Law of the Sea (UNCLOS). But beyond the nautical boundaries are the high seas, which only one percent are protected. States have access to freedoms, including the right to overfly, navigate, and install underwater cables. The high seas cannot be the subject of any claims to sovereignty. Once expressed as desolate, it is now considered a treasury of rich biodiversity and marine resources. However, they are being exploited by technological advances enabling them to deplete fisheries and seabed minerals. Deep-sea ecosystems may change or be destroyed by machine-aided excavation and gauging of the ocean bottom. As a result, there will be a loss of species in addition to fragmentation or loss of the structure and functionality of the ecosystem.
Increasing cargo ship transportation and their Bilge Dumping practices also threaten the open ocean. Bilgewater, which gathers in the bottom of a ship, is a mixture of fluids from the engine room and other potentially harmful materials like lubricants, cleaning agents, and metals like lead and arsenic. It is expensive to process this oily effluent, whether by treating it to eliminate contaminants or by discharging it at the port. Some ships simply dump it into the ocean with portable pumps, which can be a significant hazard to marine life, to save operational expenses.
Another threat in the high seas is the Great garbage patch, which carries and culminates tonnes of plastic debris released through river exits. They are carried and formed by ocean currents and “gyres.” There are five gyres in the ocean. One in the Indian Ocean, two in the Atlantic Ocean, and two in the Pacific Ocean. Garbage patches of differing sizes are located in each gyre. Cleaning up these garbage heaps and systematically disposing of them is a heinous task.
In addition, Climate change is heating the oceans, which may result in a mass extinction of marine life like the Permian Extinction experienced 250 million years ago, which extinguished 90 percent of marine species. The oceans have mitigated the worst of climate change by absorbing 90 percent of the heat caused by global warming and providing us with 50 percent of the oxygen.
What are the existing treaties on High Seas, and what are their issues?
About 20 international organisations oversee human activity in the high seas in accordance with UNCLOS, although their authority is constrained. In the shipping industry, for instance, the International Maritime Organization is in charge of safety and pollution control, whereas regional fisheries management organisations are in charge of particular fish populations. Yet, a lot of marine species migrate and regularly switch between various environments into the wild ocean which are unprotected from human activities.
The International Seabed Treaty is less concerned with conserving the environment and more interested in advancing the ultimate extraction of valuable mineral accretions from the seabed. Exploratory mining licences have never been denied. The contracting entity does environmental impact assessments; they are not independently verified and investigated. The ISA dismisses the worries of environmental groups like Greenpeace about defending the seabed from similar mining in the future or from the several very detrimental environmental side effects that would be involved.
What does the treaty pose to International Security?
First, an increased presence of private players. The implementation process of the treaty will see an increased presence of private maritime players as the agreement does not apply to the Navy warships. However, they are expected to behave reasonably with the agreement. Ocean conservation is currently led by non-governmental organisations funded by philanthropists, bureaucrats, and governments.
Second, increased monitoring and surveillance. To assess environmental impacts, monitor and traffic control ships, and provide constant surveillance over an expansive area will require advanced remote sensing and imaging technologies. There will be a need for marine spatial analysis and planning to track human activities and the ecosystem. New marine technologies must be exchanged between the developing and developed states to explore the deep ocean and seabed’s for research and exploitation. Increased monitoring will be a critical challenge for the littoral states to move their submarines in stealth and secrecy.
Third, potential for new marine resource-induced conflict. Though the agreement states that the marine samples and genetic coding will be shared, it does not mention who can further exploit the resources and with whom it shares. Does it share with the states involved in the exploration or those proximate to the resource.? Here, Global North faces the question of the free-riding problem and whom to free-ride its services.
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