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The current relations between the United States and the Democratic People’s Republic of Korea

Giancarlo Elia Valori

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As is well known, Kim Jong-Un imposed precise time and political limits on negotiations with the USA by the end of 2019.

 Moreover, at that stage, the US intelligence community was discussing North Korea’s adoption of a new short-range missile, which would make its appearance at Christmas 2019.

 For the leadership of the Democratic People’s Republic of Korea, it is important to finalise – as soon as possible – the strategic and above all economic negotiations with the United States or at least put them on a stable track.

Some substantiated Western sources also believe that the North Korean leadership is putting pressure on Kim Jong-Un himself to harden relations with Donald J. Trump’s Presidency.

 Time is ripe and there have been negotiations, but the US indeciveness on Korean issues risks putting the whole US strategic and economic system in the Pacific in crisis.

 Indeed, the US stance on the North Korean issue and the related economic sanctions, the lawfulness of which is to be debated and called into question, has been swinging – just to say the least.

 Kim Jong-Un had created – or at least this is what he believed – the conditions for full, fast and complete negotiations with the United States, especially at the meeting held in Hanoi in February 2019, where reference was made to the complete denuclearisation of the Korean peninsula, the first of the items on the agenda, even in Kim Jong-Un’s daily schedule.

President Trump also noted that “the idea of denuclearisation they have in North Korea is not the same as we have”, which is also true. Hence negotiations ended without reaching any particular results.

 On January 11 last, however, in a press report an important adviser to the Foreign Minister, Kim Kye Gwan, pointed out that reopening negotiations between the Democratic People’s Republic of Korea and the United States will be possible only if the latter adheres to the previous Singapore and Hanoi agreements, as it has already shown to do.

 Hence to the denuclearisation of the entire Korean peninsula and to the immediate lifting of sanctions.

 In short, North Korea does not want to fall by the wayside and wants, above all, to resume negotiations with the United States both on nuclear issues and on economic sanctions.

As already noted, the lawfulness of sanctions sounds dubious to us.

 After the Singapore meeting, however, President Trump felt that Kim Jong-Un “would return back home to start a process that would make his people very rich and very happy”.

 Psychologism, besides being a severe philosophical mistake – at least on the basis of what Husserl and his Phenomenology taught us – is also the terrible flaw of US diplomacy and intelligence.

 Just at that time, however, President Trump had also declared that “there was no nuclear threat from North Korea”, obviously for the United States.

 Of the two, one. Either we want the end of the Democratic People’s Republic of Korea – an absolutely improbable goal – or serious negotiations are held, which presupposes a reasonable lifting of sanctions.

 In the meeting held in Singapore in 2018, President Trump told us that Kim Jong-Un had adhered to the project of “complete denuclearisation” of the Korean peninsula.

 In the US or North Korean version, which are very different from each other? We will never know.

 However, there are no data regarding other strategic or economic concessions between the two parties.

This makes it hard for us to believe in Kim Jong-Un’s conversion to strategic masochism.

Therefore, we are still at the terms of Kim Jong-Un’s last “New Year’s speech”, the one in which the North Korean leader stated that he would not denuclearize North Korea if the USA did not stop its “hostile policies”.

Hence either the United States explicitly accepts a linkage between the denuclearisation of the Korean peninsula and the end of sanctions, or North Korea will slowly, but surely, return to its nuclear strategy, which, at that point, will cost him nothing.

 But is President Trump’s willingness to cease hostilities with North Korea and thus rebuild the stability of the entire Korean peninsula serious?

 We donot know yet. For somebody, like the old British Prime Minister Tony Blair, the US President is now completely uninterested in Korean affairs.

 And he is wrong, we might add.

 In fact, if Kim Jong-Un were to quickly rebuild his nuclear arsenal, which seems currently possible, the possibility of attacks on U.S. territory would still be remote, certainly, but the US establishment would interpret a North Korean attack on the U.S. military positions in the Pacific as a kind of suicide for North Korea. Are we sure that China and Russia would not put very credible pressure on the United States? Are we sure that a North Korean attack in the Pacific would not, technically, be a success?

 But, in fact, it is not: a possible attack by North Korea on the US and its allies’ bases in the Pacific would be highly destructive, politically very dangerous, but finally capable of unleashing the Russian and Chinese reactions in the region.

 In January 2020, Kim Jong-Un asked his ruling class to follow and take unspecified “offensive measures” to break the deadlock in negotiations with the USA.

 If the United States currently believes that North Korea is a quantité négligeable in the Asian equilibria, it is sorely mistaken.

 China will never accept an unarmed Democratic People’s Republic of Korea, which would bring China into a close border contact with the USA and South Korea, given that the maritime area that North Korea is securing is also essential for the security of the Belt and Road Initiative.

 Neither will Russia ever accept an unstabilized and reduced US presence on the Korean peninsula, which is also a strategic life insurance policy for the Russian operations between the Indian Ocean and the Greater Middle East.

Probably Kim Jong-Un will currently accept, with difficulty, a stable progression of the agreements with the USA on its nuclear power, both to revive the North Korean economy and to stabilize equilibria in the Far East.

It will, however, be a negotiation that will see – in place of the unruly Americans – many and more willing South Koreans, Japanese, Chinese, Indians, Russians, and even the pale and weak foreign policy of some surviving European countries.

 If President Trump believes he can wait for the global economic crisis to reach North Korea, he has not well analysed all the terms of Kim Jong-Un’s strategic equation.

 The possible crisis in the Democratic People’s Republic of Korea will be supported to a large extent by Russia and China but, in all likelihood, there will be other new supporters.

 Therefore, without pretences, President Donald J. Trump’s attempt to denuclearize the Korean peninsula in words has currently failed.

 On the other hand, Kim Jong-Un’s speech of December 31, 2019, in which he spoke of a “new path” and assumed new and more advanced strategic weapons, in addition to a long confrontation with the USA, shows that the U.S. policy vis-à-vis North Korea has, once again, failed.

By now we know that the concept of “denuclearization” between the two sides has never been a common criterion.

Hence, if the North Korean concept is accepted, the military alliance between the USA and South Korea shall be broken. However, if denuclearization does not concern only South Korea – as the US diplomacy sometimes seems to suggest – there is no other way for North Korea if not to continue its nuclear program and, indeed, even to expand it.

 If we proceed with the old logical and diplomatic mechanism – i.e.  the simple freezing sine conditione of North Korea’s nuclear program, no concrete objective will be achieved, since North Korea uses its strategic nuclear system precisely to overcome sanctions, and vice versa.

Hence either the denuclearisation of the entire Korean peninsula, or the North Korean nuclear program will go ahead smoothly – a program capable, however, of stopping or weakening the U.S. Japanese, Vietnamese and Indian operations in the Pacific. Does this make sense?

 Moreover, the moratorium on strategic weapons, formally still in place, imposed by the North Korean government itself, still enables Kim Jong-Un to have an excellent relationship with China and Russia, which certainly do not want too much noise in the East.

Make a sound in the East, then strike in the West, as stated in the fifth Stratagem of Sun Tzu’s Art of War.

Hence now Kim Jong-Un does not want to put aside the South Korean leader, he never mentions in his last speeches, but also keeps a door open even with the USA. The North Korean leaderdoes not say, in fact, he will automatically resume his actions with short-range and intermediate-range missiles, but makes it clear that the Democratic People’s Republic of Korea will soon rebuild its nuclear system and even expand it.

 In other words, currently North Korea capitalizes on its possible medium-long term threat, while pointing outit can deal with a tactical, rather than strategic, short or medium range threat.

 That is the best we can currently expect. Kim Jong-Un has not closed all doors, but he is careful not to open the door of divine fear, as in the I Ching’s hexagram “discard the revolt, grab the yield and surrender”. 

 Meanwhile, the North Korean leader Kim Jong-Un has not ordered any special launches or operations in recent months. This is also an important sign.

From a strictly economic viewpoint, which is only one of the criteria with which to study a State like North Korea, the recession – both stimulated by sanctions and imported from the global market -accounts for about 4.7% per year of the North Korean economy.

 Neither China, especially today with the coronavirus epidemic, nor certainly the Russian Federation can replace the share of North Korea’s economy integrating with the world market.

Nevertheless, it is also hard to think – for a rational strategic player – of a country, the USA, which creates basic economic difficulties in North Korea, and then discounts them downwards at the negotiating table on nuclear power.

 This is, however, a negotiation that neither Russia nor China would allow in any way.

President Trump, in fact, has to do with a significant part of the State Department, as well as CIA, which are pressing for an immediate, complete and fully verifiable nuclear decommissioning of North Korea. Then comes what may of North Korea’s economy, for the better or for the worse.

 Only at the end of this dismantling process, which should reasonably last at least eight years – if all goes well, but we doubt it – could the sanctions be unilaterally lifted. With what guarantees?

 Are we sure?

 What other option would inevitably be put forward by the USA to further weaken the lifting of sanctions? As Kim Jong-Un thinks, what could be the mechanism forcing the USA to lift sanctions and further end the pressure on North Korea’s foreign policy?

 Trump Administration’s more possibilist factions, vis-à-vis the North Korean politics, now have vague and unreliable plans.

We also need to consider the Iranian issue, in which, once again, the USA proposes an improbable and impossible total and radical denuclearization, if not with a local war. However, the same project applied to North Korea simply means the destabilization of the North Korean regime and its implosion, without knowing – as will also happen in Iran – when, how and where the trade sanctions will be lifted.

 No state commits suicide so easily.

What could be a reasonable solution? The immediate temporary and conditional suspension of the primary economic and trade sanctions against North Korea.

 There could also be an agreement between the EU, the USA, Japan and South Korea to phase out the North Korean nuclear system.

 But inevitably North Korea must be reassured of its permanence as a State, as well as of its controlled and, probably, partial denuclearisation, and of a complete and rapid integration into the world market. It must also be reassured of the cessation of the clear and conventional nuclear threat coming from the South, the Pacific and the US bases in South Korea and in the region.

 If the negotiation does not evaluate these options, it will be completely useless.

Russia and China will continue to make it clear they do not want the US Armed Forces at their borders. Hence North Korea will have to rely on its nuclear weapons to make up for its strategic weakness, which Kim Jong-Un knows very well it would not be fully offset by Russia or China. Finally, the strange US and EU sanctions will indefinitely stop the development of a decisive area for the whole of South-East Asia, which could also guarantee shared security in an area which, in a short time, will become central to global economic development.

Advisory Board Co-chair Honoris Causa Professor Giancarlo Elia Valori is an eminent Italian economist and businessman. He holds prestigious academic distinctions and national orders. Mr. Valori has lectured on international affairs and economics at the world’s leading universities such as Peking University, the Hebrew University of Jerusalem and the Yeshiva University in New York. He currently chairs “International World Group”, he is also the honorary president of Huawei Italy, economic adviser to the Chinese giant HNA Group. In 1992 he was appointed Officier de la Légion d’Honneur de la République Francaise, with this motivation: “A man who can see across borders to understand the world” and in 2002 he received the title “Honorable” of the Académie des Sciences de l’Institut de France. “

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Hong Kong Developments: India’s Tactical Punch To China

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Hong Kong’s National Security Legislation: A Brief Overview

A new wide-ranging Security Law was passed by China for Hong Kong on May 28, 2020 outstripping it of its autonomy, and giving Beijing exceptional power over Hong Kong’s affairs. In the wake of growing resentment against China all over the world, owing to the pandemic and the mystery surrounding its origins in Wuhan and the bitterness against Xi Jinping’s aggressive leadership, the Hong Kong move is going to further tarnish the Dragon’s domestic and global image. With China using its destabilising power over Hong Kong by ensuring that the city has a stern law against rebellion against Beijing’s authority, policies and actions, the National Security Legislation for Hong Kong is highly problematic. The government in Beijing has repressed Hong Kong’s pro-democracy movement and contravened on its promised semi-autonomous status with the National People’s Congress (NCP), unilaterally introducing a new legislation that criminalises any act of secession, subversion, terrorism and collusion with foreign and external forces. It curtails the freedom enjoyed by people in Hong Kong, restraining freedom of speech and the right to protest.

On December 19, 1984, the governments of the UK and China reached an agreement on Hong Kong. The Sino-British Joint Declaration was registered with the UN on June 12, 1985. It is a legally-binding international treaty that ensured that Hong Kong’s autonomy, freedom and independent judiciary, rule of law and rights would see no alteration for the next 50 years. The British handed back Hong Kong to China in 1997, under a unique agreement, the ‘Basic Law’, the ‘One country, Two systems’ framework. This was done to safeguard certain liberties for the prosperity and development of Hong Kong and needed to uphold its stability and culture: the freedom of speech and assembly, an independent judiciary and some democratic rights that people in China did not have. The same agreement gave the people of Hong Kong the right to enact their own national security law under Article 23 of the Basic Law.

China as a co-signatory of the Joint Declaration has flouted its promise, ignoring the need for constructive political dialogue and bypassing Hong Kong’s Legislative Council, by approving the new legislation that was enacted on June 30, 2020. The National security Legislation will, in time, be inserted in the Annex III of Hong Kong’s Basic Law. The anti-government demonstrations by the unhappy Hong Kong population against Beijing have been a source of discontent and embarrassment for Xi Jinping and a major “security threat” to the Dragon. The anti-Beijing protests with broader anti-China and pro-democracy movement have been gaining greater impetus than before in Hong Kong since June 2019. Xi Jinping is set to thrash this with this new legislation that is seen, more or less, as a vengeance regarding the withdrawal of Beijing’s contentious extradition bill of the previous year.

“The key provisions of the Security Legislation include that:

  • Crimes of secession, subversion, terrorism and collusion with foreign forces are punishable by a maximum sentence of life in prison
  • Damaging public transport facilities can be considered terrorism
  • Those found guilty will not be allowed to stand for public office
  • Companies can be fined if convicted under the law
  • Beijing will establish a new security office in Hong Kong, with its own law enforcement personnel – neither of which would come under the local authority’s jurisdiction
  • This office can send some cases to be tried in mainland China – but Beijing has said it will only have that power over a “tiny number” of cases
  • In addition, Hong Kong will have to establish its own national security commission to enforce the laws, with a Beijing-appointed adviser
  • Hong Kong’s chief executive will have the power to appoint judges to hear national security cases, raising fears about judicial autonomy
  • Importantly, Beijing will have power over how the law should be interpreted, not any Hong Kong judicial or policy body. If the law conflicts with any Hong Kong law, the Beijing law takes priority
  • Some trials will be heard behind closed doors.
  • People suspected of breaking the law can be wire-tapped and put under surveillance
  • Management of foreign non-governmental organisations and news agencies will be strengthened
  • The law will also apply to non-permanent residents and people “from outside [Hong Kong]… who are not permanent residents of Hong Kong”.[i]

The Hong Kong population faces a huge blow to their civil liberties and freedoms with the enactment of this law, histrionically changing life in the region. It is clearly without any accountability and transparency, being kept as a secret from the government of Hong Kong and the public, till its enactment. There have been instances of its abuse since it has come into being, using it to clampdown on peaceful and legitimate protests and stiffens control over media, social networking, education, and the social organisations operating in the region, giving undue and extensive authority to the Chinese investigating authority to search properties, prohibit and restrict movement and travel, censor online content and engage in covert surveillance, freeze or confiscate assets, and engage in intercepting communications without a court directive. The new draconian law has set up another new body in the government of Hong Kong, the Committee for Safeguarding National Security, with a delegate from the Chinese central government to “advise” and oversee it. This body is not subject to any checks and balances, besides being not accountable to any other structure of the government, bypassing legislative scrutiny. The government in Beijing is setting up the “Office for Safeguarding National Security” in Hong Kong with the staff and the office not falling under the city’s jurisdiction, hereby ensuring that their actions cannot be reviewed by the Hong Kong local courts. The personnel of the office have complete immunity and cannot be subject to inspection, examination or custody by local law and administration in Hong Kong.

This legislation will have a huge effect on the business and financial community as well as tarnish Hong Kong’s image as a global financial hub integrating in with China. With the enragement building against China in the pandemic period, Hong Kong will drastically suffer due to this legislative imposition. It is bound to have a hugely negative impact on the educational and social systems with heavy economic and political toll for the region.

India’s Diplomatic Move against China

China is facing an image deficit, global pushback and loss of allies in a world grappling with the unprecedented, havoc wreathing COVID-19 pandemic. With this backdrop, the controversial security legislation for Hong Kong that redefines the relationship between the people of Hong Kong and mainland China has been met with great criticism from the pro-democracy parts of the world like the US, Japan, Australia and the co-signatory of the Joint Declaration, the UK, among others. There has been great pushback against Xi Jinping’s policies that seek to flout the international norms and code of conduct and significantly, India has shed its silence and raised concern against the outrageous Chinese actions that seek to mould the world led by an order dictated by it. 

India played rather tactically, breaking its silence on Hong Kong for the first time ever, raising China’s new security legislation for Hong Kong at the UN Human Rights Council (UNHRC) in Geneva. This diplomatic move by India is likely a consequence of the deteriorating Sino-Indian engagement and the recent border clashes in Galwan Valley in Ladakh. India’s permanent representative to UN in Geneva, Rajiv Chander expressed India’s optimism that “the relevant parties will take into account these views and address them properly, seriously and objectively.” Without naming the India’s hostile neighbour, Mr.Chander argued that New Delhi is engaged in “a close watch on recent developments” in Hong Kong due to the presence of the large Indian diaspora in the region. With a number of bilateral agreements and MoUs signed between Hong Kong and India, the former is host to a number of Indian companies, various professionals in sectors like IT, banking, as a centre for conferences and exhibitions and vice versa with New Delhi having huge stakes in the region in question. The India-Hong Kong relationship has a number of facets from academic collaboration, bilateral trade and investments to tourism and cultural links.

This raising up of the issue of Hong Kong, China’s Achilles Heel, comes as a surprise and is a strategic move as New Delhi in the past, remained a mute and calculated spectator of the developments in the region. As China has been overtly as well as covertly involved in the domestic issues in India stimulating unrest in various parts of the country, even raising the Kashmir issue at UN Security Council after the abrogation of Article 370 in Jammu and Kashmir on August 5, 2019, it was imperative for New Delhi to take a firm stand against the regional bully by reviewing its approach and studied silence on Chinese matters. It landed a strategic knockback to Beijing in the aftermath of Chinese aggression in the Sino-Indian border and its belligerent approach in the South Asian region. The Sino-Indian relationship has undergone a significant technological and diplomatic tailspin, with India banning a number of Chinese applications, making it clear to Beijing to restrain from commenting on India’s internal matters and the Hong Kong reaction is another changing diplomatic stance of India, showing its firm resolve against the dictatorial and hegemonic ambitions of China. These events show New Delhi’s revised approach to the tyrant state in the aftermath of its pugnacious advances.

While India, in the past, had been unwilling to give visas to Hong Kong’s pro-democracy activists and even denied meeting the activists at G-20 summit last year for a petition to pressurise Beijing, the recent events at Galwan Valley have rocked the basic foundational structure of the relationship between these two neighbours.

With China acting out of line and raking up issues pertaining to India’s domestic issues and further, expanding and deepening its ruthless activities in creating troubled waters for India, both regionally and globally, New Delhi’s tactical punch is a welcome move in times of emerging uncertainties about China’s unruly and anarchic misdoings. This is an opportune moment for India, hence, to support the countries against a hegemonic China that seeks to advance a world in a mould that suits its needs and designs.


HONG KONG DEVELOPMENTS: INDIA’S TACTICAL PUNCH TO CHINA

Hong Kong’s National Security Legislation: A Brief Overview

A new wide-ranging Security Law was passed by China for Hong Kong on May 28, 2020 outstripping it of its autonomy, and giving Beijing exceptional power over Hong Kong’s affairs. In the wake of growing resentment against China all over the world, owing to the pandemic and the mystery surrounding its origins in Wuhan and the bitterness against Xi Jinping’s aggressive leadership, the Hong Kong move is going to further tarnish the Dragon’s domestic and global image. With China using its destabilising power over Hong Kong by ensuring that the city has a stern law against rebellion against Beijing’s authority, policies and actions, the National Security Legislation for Hong Kong is highly problematic. The government in Beijing has repressed Hong Kong’s pro-democracy movement and contravened on its promised semi-autonomous status with the National People’s Congress (NCP), unilaterally introducing a new legislation that criminalises any act of secession, subversion, terrorism and collusion with foreign and external forces. It curtails the freedom enjoyed by people in Hong Kong, restraining freedom of speech and the right to protest.

On December 19, 1984, the governments of the UK and China reached an agreement on Hong Kong. The Sino-British Joint Declaration was registered with the UN on June 12, 1985. It is a legally-binding international treaty that ensured that Hong Kong’s autonomy, freedom and independent judiciary, rule of law and rights would see no alteration for the next 50 years.The British handed back Hong Kong to China in 1997, under a unique agreement, the ‘Basic Law’, the‘One country, Two systems’ framework. This was done to safeguard certain liberties for the prosperity and development of Hong Kong and needed to uphold its stability and culture: the freedom of speech and assembly, an independent judiciary and some democratic rights that people in China did not have. The same agreement gave the people of Hong Kong the right to enact their own national security law under Article 23 of the Basic Law.

China as a co-signatory of the Joint Declaration has flouted its promise, ignoring the need for constructive political dialogue and bypassing Hong Kong’s Legislative Council, by approving the new legislation that was enacted on June 30, 2020. The National security Legislation will, in time, be inserted in the Annex III of Hong Kong’s Basic Law. The anti-government demonstrations by the unhappy Hong Kong population against Beijing have been a source of discontent and embarrassment for Xi Jinping and a major “security threat” to the Dragon. The anti-Beijing protests with broader anti-China and pro-democracy movement have been gaining greater impetus than before in Hong Kong since June 2019. Xi Jinping is set to thrash this with this new legislationthat is seen, more or less, as a vengeance regarding the withdrawal ofBeijing’s contentious extradition bill of the previous year.

“The key provisions of the Security Legislation include that:

  • Crimes of secession, subversion, terrorism and collusion with foreign forces are punishable by a maximum sentence of life in prison
  • Damaging public transport facilities can be considered terrorism
  • Those found guilty will not be allowed to stand for public office
  • Companies can be fined if convicted under the law
  • Beijing will establish a new security office in Hong Kong, with its own law enforcement personnel – neither of which would come under the local authority’s jurisdiction
  • This office can send some cases to be tried in mainland China – but Beijing has said it will only have that power over a “tiny number” of cases
  • In addition, Hong Kong will have to establish its own national security commission to enforce the laws, with a Beijing-appointed adviser
  • Hong Kong’s chief executive will have the power to appoint judges to hear national security cases, raising fears about judicial autonomy
  • Importantly, Beijing will have power over how the law should be interpreted, not any Hong Kong judicial or policy body. If the law conflicts with any Hong Kong law, the Beijing law takes priority
  • Some trials will be heard behind closed doors.
  • People suspected of breaking the law can be wire-tapped and put under surveillance
  • Management of foreign non-governmental organisations and news agencies will be strengthened
  • The law will also apply to non-permanent residents and people “from outside [Hong Kong]… who are not permanent residents of Hong Kong”.[i]”

The Hong Kong population faces a huge blow to their civil liberties and freedoms with the enactment of this law, histrionically changing life in the region. It is clearly without any accountability and transparency, being kept as a secret from the government of Hong Kong and the public, till its enactment. There have been instances of its abuse since it has come into being, using it to clampdown on peaceful and legitimate protests and stiffens control over media, social networking, education, and the social organisations operating in the region, giving undue and extensive authority to the Chinese investigating authority to search properties, prohibit and restrict movement and travel, censor online content and engage in covert surveillance, freeze or confiscate assets, and engage in intercepting communications without a court directive. The new draconian law has set up another new body in the government of Hong Kong, the Committee for Safeguarding National Security, with a delegate from the Chinese central government to “advise” and oversee it. This body is not subject to any checks and balances, besides being not accountable to any other structure of the government, bypassing legislative scrutiny. The government in Beijing is setting up the “Office for Safeguarding National Security” in Hong Kong with thestaff and the office not falling under the city’s jurisdiction, hereby ensuring that their actions cannot be reviewed by the Hong Kong local courts. The personnel of the office have complete immunity and cannot be subject to inspection, examination or custody by local law and administration in Hong Kong.

This legislation will have a huge effect on the business and financial community as well as tarnish Hong Kong’s image as a global financial hub integrating in with China. With the enragement building against China in the pandemic period, Hong Kong will drastically suffer due to this legislative imposition. It is bound to have a hugely negative impact on the educational and social systems with heavy economic and political toll for the region.

India’s Diplomatic Move against China

China is facing an image deficit, global pushback and loss of allies in a world grappling with the unprecedented, havoc wreathing COVID-19 pandemic. With this backdrop, the controversial security legislation for Hong Kong that redefines the relationship between the people of Hong Kong and mainland China has been met with great criticism from the pro-democracy parts of the world like the US, Japan, Australia and the co-signatory of the Joint Declaration, the UK, among others.There has been great pushback against Xi Jinping’s policies that seek to flout the international norms and code of conduct and significantly, India has shed its silence and raised concern against the outrageous Chinese actions that seek to mould the world led by an order dictated by it. 

India played rather tactically, breaking its silence on Hong Kong for the first time ever, raising China’s new security legislation for Hong Kong at the UN Human Rights Council (UNHRC) in Geneva. This diplomatic move by India is likely a consequence of the deteriorating Sino-Indian engagement and the recent border clashes in GalwanValley in Ladakh. India’s permanent representative to UN in Geneva, Rajiv Chanderexpressed India’s optimism that “the relevant parties will take into account these views and address them properly, seriously and objectively.” Without naming theIndia’s hostile neighbour, Mr.Chanderargued that New Delhi is engaged in “a close watch on recent developments” in Hong Kong due to the presence of the large Indian diaspora in the region. With a number of bilateral agreements and MoUs signed between Hong Kong and India, the former is host to a number of Indian companies, various professionals in sectors like IT, banking, as a centre for conferences and exhibitions and vice versa with New Delhi having huge stakes in the region in question. The India-Hong Kong relationship has a number of facets from academic collaboration, bilateral trade and investments to tourism and cultural links.

This raising up of the issue of Hong Kong, China’s Achilles Heel, comes as a surprise and is a strategic move as New Delhi in the past, remained a mute and calculated spectator of the developments in the region. As China has been overtly as well as covertly involved in the domestic issues in India stimulating unrest in various parts of the country, even raising the Kashmir issue at UN Security Council after the abrogation of Article 370 in Jammu and Kashmir on August 5, 2019, it was imperative for New Delhi to take a firm stand against the regional bully by reviewing its approach and studied silence on Chinese matters. It landed a strategic knockback to Beijing in the aftermath of Chinese aggression in the Sino-Indian border and its belligerent approach in the South Asian region. The Sino-Indian relationship has undergone a significant technological and diplomatic tailspin, with India banning a number of Chinese applications, making it clear to Beijing to restrain from commenting on India’s internal matters and the Hong Kong reaction is another changing diplomatic stance of India, showing its firm resolve against the dictatorial and hegemonic ambitions of China. These events show New Delhi’s revised approach to the tyrant state in the aftermath of its pugnacious advances.

While India, in the past, had been unwilling to give visas to Hong Kong’s pro-democracy activists and even deniedmeeting the activists at G-20 summit last year for a petition to pressurise Beijing, the recent events at Galwan Valley have rocked the basic foundational structure of the relationship between these two neighbours.

With China acting out of line and raking up issues pertaining to India’s domestic issues and further, expanding and deepening its ruthless activities in creating troubled waters for India, both regionally and globally, New Delhi’s tactical punch is a welcome move in times of emerging uncertainties about China’s unruly and anarchic misdoings. This is an opportune moment for India, hence, to support the countries against a hegemonic China that seeks to advance a world in a mould that suits its needs and designs.

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Changing equations of US-China relations and Taiwan Factor

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The relations among the two permanent members of security council have improved since the Nixon surprise visit to China in 1972 and ending the 22-year long isolation of Mainland China, although the reasons may have been many, the immediate result was consolidating the Sino-Soviet split and weakening the USSR geopolitically as well as strategically. By the next decade, China went through sweeping reforms and under Deng Xiaoping opened-up to the world. The pragmatic Deng Xiaoping’s two statements best encapsulate this period, “Poverty is not socialism, to be rich is glorious” and “Hide your capacities and bide your time”, here we can understand that he was sure that without opening-up economically and becoming an economic powerhouse, the People’s Republic of China will not be able to fulfill its objectives and while in pursuit of it, the best option is to stay humble and keep working. However, since the 2000s the policy shifted towards the peaceful rise of China, and after the 2008 financial crisis which hit western economies disproportionately, provided the opportunity for China to begin creating its sphere of influence. The accession of Premier Xi Jinping brought to fore the ambitions of China and in his inaugural address, he even talked about the China Dream. The Chinese employed the strategy of coercive economic assistance and provided pompous loans to countries in ASEAN, East Asia, South Asia, and even Eastern Europe (the 17+1 dialogue is a good example). The tools for this diplomacy are the Belt & Road Initiative and Debt diplomacy. With governments finding it difficult to get credit lines from the USA backed IMF and World Bank because they are not in a position to comply with the policy decisions which these organizations prescribe, the Chinese provide a solution that is too good to deny. Chinese say we do not care about what type of governments you have and we are ourselves an authoritarian regime, thus, it is not necessary to follow the politico-economic model prescribed by the liberal west to be successful. Although it may be music to the ears of many countries, China asks for something bigger in return; they ask for a great deal of deference and compliance as well as they, in the long run, take control of areas of strategic importance; a good example is Hambantota Port in Sri Lanka.

All the while the USA is continuously ceding space, moving inward, and creating opportunities for China to take advantage, unintentionally of course. Right from the 2008 financial crisis, the USA was embroiled with internal strife & division which culminated in the election of Donald Trump. The Trump slogan of Making America Great Again moved the US towards isolationism & made the Chinese more resolute to implement BRI and practice Debt diplomacy with greater vigor and aggression. However, although China is trying to carve out its sphere of influence (earlier covertly and now more & more overtly), USA will not likely let it happen while trying to contain China and for that, it has been supporting the claims of other party countries in South & East China seas, frequent military drills and exercises with allies, Malabar Exercise with India and Japan in the Indian Ocean, moving military assets in the South China Sea as well as tackling Chinese challenge on trade & technology front.

We know that the conflict between the two countries is on multiple fronts and as China has become more assertive amid the Pandemic, opening up border disputes with Japan in the East China Sea, ASEAN nations in the South China Sea, Taiwan in the straits and India in the Himalayas. This geo-political tango initiated by China can spiral from conflict into a confrontation. And what feeds into it is the absence of any channel of communication except the top between China and USA which if existed could have held track 1.5 or track 2 talks to reach a Modus Vivendi between these two nations. And what feeds into this fire is both the Xi and Trump administrations ceding to a discourse hyper-nationalist, which had led to further depletion for any diplomatic flexibility.

The tit for tat can only go so long without getting out of hand. We can observe, everywhere China is in confrontation, the USA is backing the aggrieved party. However, in the case of Taiwan, we can see direct confrontation among the two powers, China claims Taiwan to be its territory under One China policy and on the other hand, the USA feels it is its responsibility to honor the defense agreement with Taiwan and with the democratization, the two countries have come further close.

Taiwan factor & shrinking space for maneuverability

President of the Republic of China (ROC, Taiwan) Tsai Ing-wen in her inaugural address laid out her articulation of Taiwan’s cross-strait policy – peace, parity, democracy, and dialogue. This policy statement in the wake of Hong-Kong’s new security law, confirms that Taiwan will in no way compromise with its democratic set-up which it had earned after a long 38 years of struggle against the authoritarian state.

The success of Taiwan in dealing with COVID-19 (creating a Taiwan model), its warnings to the World & WHO which were never heard and its philanthropist actions for many countries have earned a lot of goodwill and international praise. The world is now waking up to the fact that being a strait away from PRC and facing the brunt of its coercive tactics to amalgamate Taiwan with PRC, Taiwan is very experienced in the Modus operandi of CCP and can help the like-minded countries deal with the asymmetric warfare which is practiced in real-time via disinformation campaigns on social media. Taiwan can with other like-minded democracies establish a framework to counter cognitive warfare (of which disinformation is a part) by providing a proactive & accurate narrative against influence operations that are attempting to undermine democracy by trying to nudge outcomes that will affect the political process.

The Taiwanese foreign policy revolves around 4 tenants which are, maintaining status-quo with PRC, gaining goodwill among world democracies and likeminded countries, increasing defensive capabilities, and economic strength.

However, managing the four tenants with increasing animosity between China and the USA is a challenge in itself. The current shift in the Trump administration’s approach towards distinguishing the Chinese Communist Party from the Chinese people by remembering the May 4th movement and the roots of democracy, the USA is trying to counter cognitive warfare by delegitimizing CCP on mainland China (as perceived by the CCP ideologues). In addition to this, because of Taiwan, CCP is reconciling with the fact that its approach towards Taiwan has failed, and what once China considered asymmetry of interests for Taiwan to be inclined towards China, has been shifting (with the latest pew polls showing record-low support for increasing ties with CCP). All of this mixed with China’s psych of perpetual vulnerability may soon lead to China trying to alter status-quo militarily.

This tells us that space for Taiwan to maneuver has been shrinking with every passing day. In the context of the greater Indo-pacific geopolitical theatre, Taiwan has a lot to offer be it for the USA or other middle powers who would like to maintain the status quo towards free and open International waters for trade and commerce. The current world order, being unstable and challenged with non-traditional security issues (an example being COVID-19 pandemic) as well as the assertive rise of China with a proportional rise in its vulnerabilities requires a new perspective. Taiwan being a Subject Matter Expert in these issues with a unique perspective that comes from facing vulnerability because of global isolation can become an asset to the USA as well as middle powers in developing stratagem which can be successful in saving the multi-polar world order. Taiwan understands this and should move practically ahead while calculating in real-time the permutations and combinations of possibilities and take every step likewise.

The world ahead & way forward

The whole world is looking at the American elections which are 6 months away, and the policy till then would be to contain Chinese aggression. Even China would take steps calculating the impacts and will focus on the elections. The middle powers (Japan, U.K, France, Germany, India, South Korea, etc.) should work out a strategy (less dependent on the USA) to focus on maintaining the status-quo (multipolarity).

The combination of Chinese overconfidence (overt expression of its vulnerabilities) coupled with its perception of Taiwan’s under importance in the USA’s foreign policy doctrine can lead to serious conflict and which could easily spiral in this season of Nationalism.

The situation between China and the USA will deteriorate, but to which extent and what speed will depend on the shifts in Chinese aggressiveness here onwards and the American elections in November’20. Taiwanese citizens can play an important role and so do the middle-power countries if the people and government cherish and pursue to maintain its vibrant democracy and the middle powers help the Taiwanese people in this pursuit. Hopefully, it may deter the two nations from further escalations and it may very well be the only chance to contain Chinese ambitions with minimizing the Damage to Humankind.

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East Asia

Filing of a petition with ICC: Beginning of Uighurs’ legal battle against China

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Uighur Muslims, a minority community in Xinjiang province of the People’s Republic of China (hereinafter China), has been subjected to state sponsored persecution by China for over past six years (It first began in 2014). Since 2017, when the reports of Chinese crackdown on Uighurs first became public; China has been attracting widespread global denunciation for subjecting this minority group to ‘arbitrary detentions, sexual abuse, forced abortions and sterilizations’. In July 2019, a group of 22 countries wrote a letter to the United Nations Human Rights  Council (UNHRC) condemning the persecution of Uighurs. In June 2020, USA imposed various sanctions on Chinese officials over Uighur abuses by enacting the Uighur Human Rights Policy Act, 2020.

The most recent attempt to hold China accountable for human rights violations entailed filing of a petition against China with the International Criminal Court (hereinafter ICC). In July 2020, Uighur exile groups ‘The East Turkistan Government in-exile’ and the ‘East Turkistan National Awakening Movement’ filed a petition against China seeking an investigation against around 30 Chinese officials for alleged repression of Uighurs. The country has been accused of committing the crimes of ‘genocide’ and ‘crimes against humanity’. The filing of petition is a first step towards tangible justice for Uighurs. At the same time however, it opens up a pandora’s box of questions: How will ICC assume jurisdiction over China, which is not a member to its Statute? Will China cooperate in the investigation?  Why wasn’t the International Court of Justice (hereinafter ICJ) approached?

Building a case for the International Criminal Court to take Jurisdiction:

China is not a signatory to the Rome Statute which governs the functioning of ICC. ICC therefore, does not have a direct Jurisdiction over China and its nationals. However, as alleged by the petitioners, China has been deporting these Muslims from Tajikistan and Cambodia – State parties to the Statute. The petitioners have thus argued that since a part of the crime has been committed on the territory of member states of ICC, it can assume jurisdiction over the case.

Interestingly, a similar set of facts and arguments have faced ICC earlier as well. In 2018, the court was approached to rule upon its jurisdiction over alleged mistreatment of Rohingya Muslims by Myanmar – a non-member state. In the said case too, it was claimed that the Court has Jurisdiction over those who committed crimes against the Rohingyas under article 12(2)(a) of the Statute “because an essential legal element of the crime- crossing an international border- occurred on the territory of a State which is a party to the Rome Statute (Bangladesh)”. ICC’s pre-trial Chamber I ruled that it “has jurisdiction over the alleged deportation of members of the Rohingya people from Myanmar to Bangladesh”. It further added that “If it were established that at least an element of another crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party, the Court might assert jurisdiction pursuant to article 12(2)(a) of the Statute”. Expecting a similar ruling in the Uighurs’ case is thus not an unrealistic dream.

In fact, from the juxtaposition of the facts, crimes and parties involved in the two cases, itcan be safely deduced that there exists a high probability of ICC assuming jurisdiction and initiating investigations into alleged criminal acts concerning Uighurs. On humanitarian grounds, it perhaps will be a step in the right direction. Indubitably, grave crimes like these cannot be avoided or deferred based on mere technicalities. However, it certainly would go against certain long-established principles of International Law.

Roadblocks

ICC’s assumption of jurisdiction would, at the very least, be in circumvention of the very spirit of Article 34 of Vienna Convention on the Law of Treaties which states that “A treaty does not create either obligations or rights for a third state without its consent.” Since China is not a signatory to the Rome Statute, it must not be obligatory for it to submit to the jurisdiction of ICC. Another principle of law, which ICC would be going against is ‘Ubilexvoluit, dicit; ubinoluit, tacit’. It means ‘if the law means something, it says; if it does not mean something, it does not say it’. Now, under the Rome Statute, ICC can exercise jurisdiction only under three circumstances– where the alleged perpetrator is a national of a State Party or where the crime was committed in the territory of a State Part (1) , or a State not party to the  may decide to accept the jurisdiction of the ICC(2), or the Security Council, acting under Chapter VII of the United Nations Charter, can refer a situation to the Office of the Prosecutor (3). The intention of the draftsmen with regards to Jurisdiction of ICC is thus very clear – ICC shall not exercise jurisdiction over non-member states. The written law does not provide for a jurisdiction over non-member states except by a referral from the UNSC.

It not only would reinforce wrongful persuasion but might also turn out be completely ineffective because International Tribunals do not succeed when the necessary state parties do not submit to their jurisdiction itself. In this regard, ICC itself has noted that, “as a judicial institution, the ICC does not have its own police force or enforcement body; thus, it relies on cooperation with countries worldwide for support.”Non-States parties are not obligated to cooperate with ICC for making arrests, freezing suspects’ assets etc.

It is very unlikely that China will even appear before the International Court. If it does, it surely will contest ICC’s jurisdiction. ICC would thus have to negate each of the above arguments. Given the low probability of China cooperating in an investigation initiated by ICC, Justice to Uighurs will not come easily even after the jurisdiction is taken by ICC.

A Case at the ICJ in the alternative

Chinese atrocities against Uighurs in Xinjiang are also in violation of various provisions of the Convention on the Prevention and Punishment of the Crime of Genocide (“the Genocide Convention”), to which China is a party. ‘Genocide’, under Article II of the Convention, among others includes ‘Causing serious bodily or mental harm to members of the group’ and ‘imposing measures intended to prevent births within the group’.A study undertaken by Human Rights Watch on Chinese repression of Uighurs has reported ‘political indoctrination’, ‘deaths in custody’, ‘torture’ and ‘mistreatment’ of Uighurs. Another report gives a detailed account of forced sterilization and employment of other birth control techniques on Uighur Women to supress Uighur birth rates in the Country. These fiendish acts fall under the crime of ‘Genocide’, punishable under Article IX of the Convention.Article IX prescribes that the disputes “relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”

Now, for a dispute to be adjudicated by ICJ, any of three conditions under Article 36 have to be satisfied: (1) If the state has made a declaration under Article 36, paragraph 2 of the ICJ’s statute granting the court compulsory jurisdiction over disputes under international law; or, (2) where a particular treaty provides the ICJ as its dispute resolution mechanism; or, (3) by entering into a special agreement to submit the dispute to the Court. Since China had withdrawn its declaration under Article 36(2) of the ICJ Statute, it is not under compulsory jurisdiction of the ICJ. But China has ratified the Genocide Convention which prescribes ICJ as the dispute resolution body. Therefore, any Contracting Party to the Convention may bring a case against China. It thus follows that ICJ’s jurisdiction in the matter at hand can be founded under Article 36, Paragraph 1 of the ICJ Statute read with Article IX of the Genocide Convention.

Bringing China under the radar of ICJ would have been easier yet less effective. ICJ, under its statute, is not empowered to prosecute individuals. It could, at the most, order China to cease ongoing genocide and to prevent genocide from occurring in the future. Additionally, it can also order equitable remedies like ordering China to enact legislation to criminalize genocide in line with the requirements of the Genocide Convention. On the other hand, ICC’s purpose of establishment itself was prosecution of individuals. It can impose lengthy terms of imprisonment of up to 30 years, order a fine, forfeiture of proceeds, property or assets derived from the committed crime. ICC’s mechanism thus suits the best in the current scenario.

Concluding thoughts

Past precedent on China’s response to international adjudication is not very encouraging. Traditionally it has shunned all international adjudication, preferring to settle all disputes through direct negotiation. The past experiences of Chinese response to international adjudication invited remarks like “Putting ‘China’ and ‘international law’ in the same sentence is an oxymoron.”  When China lost to Philippines in the South China Sea Case, a former Chinese diplomat openly said that this judgment was “nothing more than a piece of paper”.

Even if China accede to international adjudication of any sorts, neither ICC nor ICJ has the mandate to enforce their judgments. Adding onto the misery, China being a permanent member of UNSC can veto any resolution pertaining to enforcement of a ruling against itself. Nevertheless, filing of a petition at ICC is itself a step towards justice. It sends an indication to China’s government that the international community will no longer condone its actions. In the long run, attaining justice for Uighurs might take filing of cases at multiple judicial institutions as in the case of ‘mistreatment of Rohingyas’. There is even a possibility that a parallel case may be filed at the ICJ. This is only a first step in the Uighurs’ battle against China.

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