Arguing International Law in the South China Sea: Does it still really matter?
“International law is very important not only for China’s sole interest but it is also to maintain a rule-based global order, to avoid a hegemonic power to do anything that they want.” Said the Ambassador of China to the Kingdom of Netherland during the Chinese Embassy Reception for The Hague Academy of International law attendance last winter course.
In his remarks, the Ambassador emphasizes how important is international law for the international community. Moreover, he also reiterates that International law should not be used by the superpower to enforce and justify their foreign policy interest. Therefore it is China’s interest to defend international law.
Even though the speech was filled with praise of the importance of international law, some people saw it with a little bit of cynicism, considering what happened in the South China Sea. Where China’s claim to nearly all the South China Sea is considered inconsistent with the United Nations Convention on the law of the sea.
Hence the questions are really is international law still really matters for China?
Indeed, Ian Hurd, an American scholar in international relations in his book entitled “How to do things with international law” argued that international law was commonly used for states to justify their foreign policy interest. He contends was align with Harold Koh, an American jurist who served for the Obama Administration as an advisor for secretary Hillary Clinton, he said that a foreign policy would become stronger when it has international law in their side and weaker if it against it.
Therefore it can be understood that nearly all American foreign policy, they always claimed to be backed up with international law. From foreign intervention to torture in Guantanamo prison, they always argued that they have international law on their side. It seems that China learns a lot of things from the United States, including how it uses and argue international law on their side.
In the South China Sea, however, it seems that the international community has been accusing China of inconsistent with their narrative in the importance of compliance with international law. By claiming the whole South China Sea China has acted against UNCLOS. Moreover, byrejecting the tribunal ruling in the Hague, China has shown an attitude in not respecting international law.
Is it true that China does not care about international law at all? There are some practice however which might consider China intended to use international law as a tool to justify their arguments.
In May 2018, the Chinese Society of International law wrote a critical study to the South China Sea Arbitration Awards published by the Chinese Journal of International law. The 500 pages article tried to back up the Chinese government policy with the narrative of international law by criticizing the tribunal award from an international law perspective. Chinese scholars in international law have also frequently written an article, which tries to justify the government policy with international law argument.
In a recent article written by Professor Lei Xiaolu from Wuhan University published by the Jakarta Post for instance. The article comments on the recent escalation between China and Indonesia in the North Natuna Sea and argues that Chinese fisherman has the right to fish in the Indonesian North Natuna Sea. However, It is quite interesting because the article does not mention the illegal nine-dash or traditional fishing ground as their legal basis, but she argued that China has the ‘traditional fishing rights’.
The narratives were interesting because China did not mention the nine-dash line and traditional fishing ground argument and start to use more legal terms that recognized in international law. Indeed, neither the nine-dash line nor traditional fishing ground terminologies are not recognized by the UNCLOS 1982. Therefore, it is difficult to argue something that not even actually recognize by international law.
However, still, the article wrongly analyzed the ‘traditional fishing rights’ under UNCLOS. The ‘traditional fishing rights’ term is stipulated in article 51, is in the context of historic fishing rights in the archipelagic waters, therefore China couldn’t claim to have the rights.
It is interesting however to see that even though China always been considered as the giant in the region and violator of international law, in some sense they always brought the narrative of international law. It seems that China has been pick and choose which international law that they want to comply with and which one is not.
Therefore it seems that China has been acting as a good observer by following the footstep of the United States in using international law to justify its foreign policy agenda. It is, however, doesn’t mean that China totally disregards all international law, but as an emerging power, China started to pick and choose which rule of international law which they will comply.
What does the Arctic Ocean hold for the world in changing global politics?
“The Revenge of Geography: What the Map Tells Us About Coming Conflicts and the Battle Against Fate”, a book by Robert Kaplan sheds light on the imperative role of geography in changing the destiny of nations. Only geography of a country doesn’t benefit countries much, but technology and research open ways to become a developed nation. History showed the true manifestation of this fact. The arrival of Vasco de Gama in the Indian Ocean and his discovery of the trade route brought the interest of great powers of that time to the subcontinent. The arrival of these powers in the subcontinent changed the fate of indigenous people. However, they also benefited from the sea and natural resources of the Indian subcontinent. The past tells that sea and national resources are the cornerstone of the country’s position in global politics but also attracts attention from world powers. Similarly, In today’s world, where the world is confronting the energy crisis, global warming, challenges of the supply chain, and chasing maximization of resources as a strategic benefit, the arctic ocean grapes the world’s attention. The Arctic Ocean is located in the North polar region. The main countries sharing the arctic ocean are the US, Canada, Greenland, Iceland, Norway, Sweden, Finland, and Russia. According to the world economic forum, 13% of undiscovered oil is present in the arctic ocean as well as 30% of undiscovered gas is present there. Apart from these bordering countries, non-Arctic countries also have a great economic and strategic interest in the arctic which includes India, japan, south korea, and many more.
Energy security, Europe and Russia
The invasion of Russia in Ukraine highlighted an issue of energy security in the world but on the other hand, the strategic use of renewable energy resources also came into the light. The rising energy prices and halting supply of energy gave a call for a diversification of energy resources to gain strategic defense where overly dependence can put countries in a vulnerable situation. In this geopolitics and geoeconomics scenario, Norway is fully reaping the benefits of its research and exploration of oil resources in the arctic ocean. In all these circumstances, the strategic importance of renewable resources in the arctic ocean came under discussion. The reason behind this is that renewable energy resources like wind and solar energy are difficult to be weaponized at the time of war. Somehow, the rising global warming which is opening avenues to utilize untapped resources also demands a shift toward renewable energy resources. Though the shift from fossil fuels is difficult, Ukraine Russia war triggers a debate on the use of renewable resources where the arctic ocean can be proved an excellent opportunity to opt for a renewable energy policy in the world.
New trade routes, Sino-Russia, USA, and non-arctic countries
The development of the Northern Sea Route by China and Russia will provide a faster route for the passage 0f traffic as compared to the passage from the Suez canal which will attract more attention from the world in terms of economic and environmental benefits i.e. fuel consumption reduced and it also has a positive impact on the environment. But it will have a drastic impact on Egypt whose major chunk of the economy is contributed by earnings from the Suez Canal. Additionally, the development of trade routes in the arctic ocean will also impact the Malacca strait, especially in Singapore and Indonesia. Therefore, it is showing that new trading routes will have an impact on certain countries and supply chains will change. The strategic, economic, and strategic benefits of this area attract the world, but it also raises the question: will this region become a new area of strategic competition? According to Malte Humpert in his article New US Arctic Strategy Foreshadows Increasing Hurdles for Cooperation in a More Complex Region The U.S. strategy is built around four pillars: security, climate change and environmental protection, sustainable economic development, and international cooperation and governance. The US Arctic policy 2022 which is the first time published after 2013 highlighted The strategy specifically singles out Russia and China as the two main competitors in the Arctic and highlights their recent activities in the Arctic in light of the growing strategic importance. Contrary, sino-russia both have a point of divergence and convergence for interest. Since both countries are collaborating in different areas mainly in One Belt One Road and other areas of mutual benefit, most likely they will collaborate in areas of energy and research in the arctic ocean. Similarly, the interest of other non-arctic countries like Japan and India, etc in the arctic ocean also demands a collaborative approach between stakeholders. In today’s global world where every country is focusing on strengthening their economies by opting strategy of diversifying their income sources and trying to attain natural resources to gain strategic advantage, it is the need of the hour to have collaboration between countries under the umbrella of international organizations because a healthy competition between countries bring development in technologies and development but unhealthy competition results in a disastrous impact on the world especially under developing and developing countries.
Global warming, arctic ocean, climate challenges
The melting ice in the arctic ocean, and the exploitation of oil resources, and minerals will impact the climate of the world. The Arctic Ocean is one of the untapped resources of the world. The melting in the arctic ocean will bring a change in geo-economic and geopolitical areas. The exploitation of resources causes the emission of immense carbon dioxide that has transboundary impacts especially on developing countries which are already facing indigenous challenges altogether. The heat weaves in Europe, devastating floods in Pakistan, and other examples create challenges for the world. Therefore, there is a need for a special focus on climate change concerning the arctic ocean.
What is next?
The future of the world lies in peace. The ongoing war between Russia and Ukraine depicts that the war has ripple effects and impacts the lives of every individual on the earth in this globalized world. The strategic competition between great powers is good until it fosters research, and the upgradation of technology which is a symbol of healthy competition, but when this competition shouldn’t result in a cold war which proves a disaster for the world. The stakeholders of the arctic ocean should come under one umbrella and work together by keeping in view mutual benefits. Therefore, the world needs to develop policies to counter global warming by keeping in view the arctic ocean.
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.
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