The Rules-Based Order, Maritime Freedom and Recent Naval Operations in the Barents Sea
Last week, the U.S. Navy announced publicly that a group of warships had entered the Arctic waters of the Barents Sea to “conduct maritime security operations.” The ships participating in these combined operations included three U.S. Navy Arleigh Burke-class destroyers and one Royal Navy Duke-class frigate, all of which were accompanied by a U.S. Naval Ship to provide them with logistical support during their operations. This group of surface ships also received air supportduring these operations from a U.S. Navy P-8A maritime patrol and reconnaissance aircraft and a U.S. Air Force RC-135 reconnaissance aircraft. Given that these operationswere conducted within a body of water located among the coastlines and island groups of twoEuropean coastal states(i.e., Norway and Russia), the U.S. ships were under the operational command of Commander, U.S. Naval Forces Europe/Africa, headquartered in Naples, Italy. Of significance, the U.S. Navy’s press release highlighted that these were the first “surface” operations conducted by the U.S. Navy in the Barents Sea since the mid-1980s. Additionally, the press release declared that these combined naval operations had two intended purposes: (1) to “demonstrate seamless integration among allies” and (2) to “assert freedom of navigation.”About this second purpose, the commander of the destroyer squadron stated, “It was great to be operating in the Barents Sea again. This is what it means to be a global Navy, sailing wherever international law allows.”
When it comes to “sailing wherever international law allows,” the concept of maritime freedom has received significant international attention over the past few years –but primarily for waters elsewhere in the world that are distant from European shores. In general, there is a minority of coastal states around the world that attempt to restrict the transits and activities of other states’ vessels and aircraft, particularly their military vessels and aircraft, in excess of what international law permits them to restrict. While not the only culpable state, China has received much scrutiny for its efforts to control how ships and aircraft may operate on and over the waters of East Asia, particularly within its infamous 9-dash line in the South China Sea. If other states acquiesce to illegal restrictions imposed by this minority of coastal states, then the maritime freedom guaranteed to all states globally could be jeopardized.
To counter efforts by this minority of coastal states to restrict maritime freedom, the U.S. government has executed a presidentially-directed, multi-agency “Freedom of Navigation Program” over the past four decades. In conjunction with formal diplomatic protests by the U.S. Department of State, ships and aircraft of the U.S. military conduct routine transits and peaceful activities, known technically as “freedom of navigation operations” (FONOPs) or “operational assertions.”Of note, the U.S. Freedom of Navigation Program also includes what is described as “other FON-related activities” — that is, operations that have “some other primary purpose, but have a secondary effect of challenging excessive maritime claims.”The purpose of these FONOPs and other FON-related activities is to ensure that unlawful, unilateral restrictions imposed by coastal states are not accepted internationally. For the Arctic region specifically, the U.S. Department of Defense Arctic Strategy (June 2019) described the importance maritime freedom in the Arctic region as follows:“Maintaining freedoms of navigation and overflight are critical to ensuring that the Arctic remains a free and open domain and that U.S. forces retain the global mobility guaranteed under international law. DoD will continue to fly, sail, and operate wherever international law allows.” At a fundamental level, that same U.S. strategy recognized that preserving maritime freedom in the Arctic, as it is other regions of the world, is about “strengthening the rules-based order.”
On previous occasions, this author has sought to provide insights into the importance of maritime freedom and the deliberate role of the U.S. military in helping to preserve this freedom. These commentaries have included examinations of the legality and legitimacy of such military operations, explanations about why are they are conducted in the South China Sea, and efforts to quash legal disinformation and dispel factual myths propagated by critics who are opposed to these operations. Critics of the U.S. Freedom of Navigation Program, including voices in China, often allege inaccurately that these operations are intended to be provocative and that they seek to single out nations that the United States does not like. At the same time, some European legal observers might be unfamiliar with the FON program and question whether FONOPs are warranted. For these reasons, the recent U.S./U.K. naval operations in the Barents Sea provide an opportunity to reflect upon the importance of preserving maritime freedom – not only in that body of water, but in oceans world-wide.
Restrictions on Maritime Freedom in the Barents Sea
Military doctrine explains, “Understanding the operational environment is fundamental to joint operations.” This operational environment includes “the conditions, circumstances, and influences that affect employment of capabilities and bear on the decisions of the commander.” In terms of law, what are the “influences” or “conditions” that could affect the operational environment of the Barents Sea? As mentioned previously, there are two states with territory surrounding the Barents Sea: Norway and Russia. Norway has not attempted to restrict the maritime freedom enjoyed by other states, but Russia has asserted excessive maritime claims that could affect maritime freedom within portions of the Barents Sea.In particular, Russia has two maritime claims that might have potentially been challenged during the recent U.S./U.K. naval operations.
First, Russia has drawn baselines along its entire coastline, which close off an excessive amount of waters as internal waters and improperly push out the starting point for measuring its maritime entitlements (i.e., territorial sea, contiguous zone, and exclusive economic zone). As reflected in applicable international law, the normal rule for drawing baselines along a state’s coastline is to use the low-water mark. The International Court of Justice has ruled that the method of straight baselines is “an exception to the normal rules for the determination of baselines” and “may only be applied if a number of conditions are met.” For example, a straight baseline drawn across a body of water shall not exceed 24 nautical miles. Notwithstanding these legal limitations, Russia has literally implemented the exception to be its universal rule. In 1984 and 1985, the then-Soviet Union declared a comprehensive regime of straight baselines along its entire coastline. For purposes of this discussion, the 1985 declaration including straight baselines on Russia’s coastline adjacent to the Barents Sea. Of note, one of those baselines is drawn from Cape Svyatoy Nos and Cape Kanin Nos, measures approximately 220 nautical miles in length, closes off the mouth of the White Sea, and thereby seeks to make it entirely internal waters. Consequently, the U.S. government views Russia’s regime of straight baselines to be an excessive maritime claim, and challenged these baselines diplomatically and operationally in the 1980s.
Second, Russia has imposed navigational restrictions along the Northern Sea Route (NSR), which appear to apply to military and non-governmental vessels alike. In 2012, Russia enacted its Federal Law of Shipping on the Water Area of the Northern Sea Route. This law mandates that foreign vessels intending to transit the NSR shall, among other requirements, provide advance notification of transits, use Russian ice pilotage, pay pilotage fees, and be escorted by Russian icebreakers. In May 2015, the U.S. Department of State delivered a diplomatic note to the government of Russia, which identified a number of ways in which its NSR law exceeded the authority of a coastal state under international law. The diplomatic note highlighted that the Russian legal regime “does not seem to provide an express exemption for sovereign immune vessels.” Similarly, the DoD Arctic Strategy assessed there strictions of Russia’s NSR law to be “in excess of the authority permitted under international law.”Notwithstanding these U.S. concerns, the Russian government did not eliminate or loosen these restrictions, but rather started the process of furthering tightening them. In March 2019, Russia announced draft legislation that would expressly apply these transit requirements on foreign warships, which would clearly violate the sovereign immune status of such warships.
For these two excessive maritime claims asserted by Russia, the question remains: could the U.S./U.K. warships have challenged either or both these claims during their Barents Sea operations? In all likelihood, they could have challenged the first one, but maybe not the second one. Given that Russia’s straight baselines include its entire coastline in the Barents Sea, these foreign warships could have conducted one or more FONOPs to challenge that claim. But it is somewhat unclear whether it would have been feasible for the foreign warships to challenge the second claim in the Barents Sea. By the actual language of Russia’s 2012 NSR law, these requirements apply to vessels navigating in the “area of the Northern Sea Route.” Article 5.1. of that law defines that “area” to include “a water area adjoining the northern coast of the Russian Federation, including internal waters, territorial sea, contiguous zone and exclusive economic zone of the Russian Federation.” It further defines that area to span from the Bering Strait at its most western point to the “east coast line” of the Novaya Zemlya archipelago. In other words, the Barents Sea is not within what defines as the “area of the Northern Sea Route.”However, Commander, U.S. Naval Forces Europe/Africa published an opinion-editorial in July 2019, in which he expressed concern about Russia’s increased restrictions on the NSR. Of note, his description of the NSR implied that the Barents Sea was impacted by Russia’s law, given that he described the NSR as one that “connect the Kola Peninsula and the Bering Strait.” If that the U.S. understanding of the situation, then these naval operations might have additionally or alternatively sought to challenge this second excessive claim.
As an aside, it would also be helpful to understand what is not the purpose of FONOPs. In particular, these operational activities are directed at excessive maritime claims, not competing maritime claims. For competing claims, the U.S. government generally does not take a side in maritime disputes to which the United States is not a party, but calls upon the claimant-states to resolve their disputes by peaceful means in accordance with international law. This policy nuance is sometimes misunderstood by some government officials and outside observers, particularly in complex situations such as the South China Sea, where competing claims and excessive claims exist simultaneously. But fortunately, this is not an issue in the Barents Sea. That is, the “operational environment” of the Barents Sea is not complicated by competing maritime claims, given that Norway and Russia have an agreed maritime boundary delimitation, based upon their 2011 bilateral treaty.
Returning to the matter of maritime freedom, some observers might wonder: what exactly did the U.S./U.K. Navy do during these recent operations in the Barents Sea to protect maritime freedom? The U.S. Navy’s press release for the Barents Sea operations stated generally that one of the purposes of these operations was to “assert freedom of navigation,” without specifying whether any element of these ongoing operations would actually include ship transits or activities designed to directly challenge one or more of these excessive maritime claims asserted by these surrounding states. Hopefully, given that the public records of U.S. Freedom of Navigation operations reflect that the most recent diplomatic and operational challenges to these excessive maritime claims in the Barents Sea were in the 1980s and early 1990s, the U.S. and U.K. navies seized this opportunity to renew the operational challenges to some or all of these excessive claims.For reasons of operational security, the public will not know for certain whether specific operational challenges were conducted during these Barents Sea operations until the U.S. Department of Defense issues its annual Freedom of Navigation report for fiscal year 2020, which would be published sometime in early 2021.However, in light of recent U.S. practice elsewhere in the world, the U.S. government might alternatively decide to publicize any freedom of navigation operations in the Barents Sea, soon after they were conducted.
Finally, it should be noted that these recent U.S./U.K. naval operations might have intended to preserve maritime freedom more generally, without actually including a FONOP or other FON-related activities that directly challenge a particular excessive maritime claim. The U.S. Navy sometimes publicly characterizes these as a “persistent presence” or “routine presence operations.” Such presence operations can be intended to effectuate several national security policies or interests simultaneously, to include preserving maritime freedom, reassuring allies and partners, deterring transnational crimes such as piracy, and dissuading competitors and potential adversaries. Of course, there would be nothing wrong if these recent naval operations did not include activities to directly challenge one or both of these excessive maritime claims asserted by Russia. However, given the logistical challenges, expended resources, expansive area of operations, and relatively infrequency for this group of warships to transit to and operate within Arctic waters, it would have been a lost opportunity if the U.S. Navy did not conduct at least one FONOP as an element of these Barents Sea operations.
The Significance of Providing Notification
Given the geopolitical status of Russia in the European theater, perhaps some additional thoughts on maritime freedom through the lens of U.S.-Russia relations are warranted. The current U.S. National Security Strategy recognizes that the United States, Russia, and China are not “at peace” or “at war,” but rather are operating in “an arena of continuous competition.” The strategy also identifies that a “risk of conflict due to Russian miscalculation is growing.” In response, the U.S. strategy declares, “We will raise our competitive game to meet that challenge, to protect American interests, and to advance our values.” Additionally, the United States seeks to “deepen collaboration with [its] European allies and partners to confront forces threatening to undermine our common values, security interests, and shared vision.” These allies would include the United Kingdom, and these common values would include preserving maritime freedom. Yet a question arises: how can the United States protect a value or interest like maritime freedom without increasing the risk of miscalculation by a competitor like Russia? Once again, consider the Barents Sea naval operations as an illustrative example.
An important preparatory step taken with respect to these naval operations was that Russia was notified that they were occurring. As a matter of practical details, when and how was this notification provided? The U.S. Navy’s press release addresses when it was provided: “The Russian Ministry of Defense was notified of the visit to the Barents Sea, May 1.”But it does not specify the manner in which the notification was provided. In all likelihood, the U.S. government provided this notification through defense attaché channelsor a direct communications link with the Russian government.
Another logical question worth asking is why was this notification provided? The U.S. Navy’s press release clarifies, “The notification was made in an effort to avoid misperceptions, reduce risk, and prevent inadvertent escalation.” Some observers might wonder whether providing this advance notification of these operations sets a “bad precedent.” International law can be formed by either conventional law or customary law, but both forms of law create legal obligations for the state-parties involved. In terms of customary law, a concern might be that a practice of providing notifications to a coastal state before conducting transits or commencing routine operations could eventually form an obligation to provide such notifications in the future. Paradoxically, legal experts might question whether providing this type of notification for naval operations – especially ones that are specifically intended, in part, to protect maritime freedom — might risk undercutting that very freedom by providing that notification.
In this particular instance, however, this notification arguably does not jeopardize the maritime freedom guaranteed to all states under international law. As the International Court of Justice has explained, customary international law is formed through state practice accompanied by “a belief that is practice is rendered by the existence of a rule of law requiring it.” This necessary element is captured by the Latin phrase opinion juris sive necessitatis, or “opinio juris” for short. This raises the question: what was the intended purpose of this notification for these naval operations? In other words, this notification was not provided out of some sense of obligation or requirement of the international law of the sea. Instead, the decision to provide this information to Russia was made as a matter of U.S. policy.
Moreover, the U.S. Navy’s press release does not indicate that notification was provided for a particular freedom of navigation operation to challenge a specific maritime claim asserted by Russia as a coastal state. Instead, the notification might have been more generally about the combined U.S./U.K. naval operations within the high seas of Barents Sea. This would be consistent with specific obligations under a bilateral agreement that is separate and apart from the international law of the sea. In fact, the United States and Russia have several bilateral agreements that include notification provisions designed to reduce risk of unsafe incidents or escalation between their respect military forces. Under the 1972 Prevention of Incidents On and Over the High Seas Agreement (INCSEA), both the United States and Russia agreed to “provide through the established system of radio broadcasts of information and warning to mariners, not less than 3 to 5 days in advance as a rule, notification of actions on the high seas which represent a danger to navigation or to aircraft in flight.” Additionally, the two governments concluded a legally-binding, bilateral agreement in 1989 with the stated purpose of “prevent[ing] dangerous military activities, and thereby [reducing] the possibility of incidents arising between their armed forces.” Article II of that agreement obligates each party to “take necessary measures directed toward preventing dangerous activities,” without specifying what types of measures are necessary and whether those measures might include prior notification of conducting activities. At the same time, however, Article VIII of that same agreement states, “This Agreement shall not affect…the rights…of navigation and overflight, in accordance with international law.” In short, the U.S. advance notification to Russia about these naval operations did not otherwise undermine the maritime freedom to operate in the Barents Sea.
The Importance of “Maintaining” Maritime Freedom Against “All Hazards”
In closing, a brief lesson in maritime history and law might be appropriate. The Barents Sea was named after Willem Barentsz. Living in latter half of the sixteenth century, Barentz was a Dutch navigator, cartographer, and explorer. During his seafaring career, he famously explored all of the oceans and islands surrounding the European continent, to include the Mediterranean Sea but more notably waters within the Arctic Circle. Hoping to find the “northeast passage,” Barentz and his crews impressively braved extreme weather conditions and undertook three historic voyages through these icy waters. For these accomplishments, one of the bodies of water that he was a pioneer to explore was eventually named in his honor. Coincidentally, the final years of Barentsz’s life overlapped with the first years of another famous Dutchman: Hugo Grotius. Grotius was aware of his fellow countryman’s contribution to international maritime exploration, as he purportedly observed that Baretnsz was “worthy to be ranked with” the Italian Amerigo Vespucci and Christopher Columbus. Eventually, Grotius left his own mark on world history, being described now by many legal experts as the “father” of international law.
Only a decade after Barentz’s death, Grotius published his pamphlet Mare Liberum, which translates from Latin as The Freedom of the Sea. About the universality of maritime freedom, Grotius famously observed, “[T]he sea is common to all, because it is so limitless that it cannot become a possession of any one, and because it is adapted for the use of all, whether we consider it from the point of view of navigation or of fisheries.” At that time, Grotius was countering Portugal’s mare clausum (closed sea) policy. What happens if one state seeks to control other states’ free access to the world’s oceans: should those others states capitulate or acquiesce? Grotius legal defense of maritime freedom argued otherwise:
Wherefore since both law and equity demand that trade with the East Indies be as freeto us as to any one else, it follows that we are to maintain at all hazards that freedom which is ours by nature, either by coming to a peace agreement with the Spaniards, or by concluding a treaty, or by continuing the war.
Four centuries later, we see that two truths endure: the cold weather conditions of the Barent Sea still pose a “hazard” to mariners who brave those Arctic waters; so, too, do the efforts by some states around the world that seek to restrict the maritime freedom of other states, including in the waters of the Barents Sea. In the contemporary era, however, the ways for states to “maintain” their maritime freedom has been refined, beyond “a treaty” or “a war.” In between those extremes rests another option: routine, peacetime naval operations, like those recently undertaken by two allied navies.
The ICC acts naively in foreign affairs
On March 17, 2023, Pre-Trial Chamber II of the International Criminal Court (ICC) issued warrants of arrest for two individuals in the context of the situation in Ukraine: President Putin of the Russian Federation and his aide Maria Lvova-Belova who is in charge of Children Rights Affairs at the President’s Office. The ICC did arouse a sensational news in global media, but it is also seen as a diplomatic farce and a political fuss among the Global South.
The ICC was created with a view to working for a global fight to end impunity and, through International Court of Justice, it has since aimed to hold those responsible accountable for their crimes. Yet, the ICC is aware of the reality where it can’t reach these goals alone. Governed by an international treaty called the Rome Statute, the ICC has been literally the world’s first permanent international criminal court. Later, it has one Liaison Office to the U.N. headquarters in New York and seven field presence/ country offices: Kinshasa and Bunia (Democratic Republic of the Congo, “DRC”); Kampala (Uganda); Bangui (Central African Republic, “CAR”); Abidjan (Côte d’Ivoire); Tbilisi (Georgia); and Bamako (Mali), where ICC field offices are responsible for developing and maintaining cooperative relationships with key stakeholders in situation countries and supporting the Court’s mandate and resulting activities in these countries.
Now the question arises if the ICC has acted as an inter-States legal organization of fairness, neutrality and humanity. The answer is saliently “No”. International law essentially consists of rules and principles of general application dealing with the conducts of states and of international organizations and with their relations inter se, as well with some of their relations with persons, whether natural or juridical. [Malanczuk, 1998] Yet, the decentralized nature of international law is fundamentally rooted in the decentralized structure of international society or what it is termed of «anarchic system». As some legalists argue that modern international law has in any case always been dual in nature: it is based on state sovereignty while making an effort to regulate if not limit it. With the League of Nations in 1920, it began the establishment of the Permanent Court of International Justice at The Hague. Since 1945, it was renamed the International Court of Justice (ICJ) that has since played a major role in the formation of international law.
Yet, at the end of the WWI, the winning side of the war came to argue that the individuals of the losing side would be subject to criminal prosecution for their part in the outbreak of the war and the conducts during it. In doing so, the Versailles treaty affirmed that the Kaiser of Germany was liable to criminal prosecution on account of “a supreme offence against international morality and the sanctity of treaties” in terms of the violation of Belgium neutrality. However, the Dutch government refused admitting the clauses providing for the extradition of the German Kaiser (Art. 227) due to the fact that all the great powers of Europe had become involved in an arms race prior to the total war. Accordingly, in 1919 the peace treaty acted a deliberate policy of discrimination against Germany referring to “keeping Germany down”. After the WWII, several dozens of German and Japanese military and political figures were prosecuted and sentenced by the tribunals of the allied powers in Nuremberg and Tokyo. This has inspired the liberal scholars and some of public groups to set up international criminal courts under the auspices of the U.N. in Arusha after the genocide in Rwanda and in The Hague after the civil war in the former Yugoslavia. The Rome Statute provided for the establishment of a permanent International Criminal Court (ICC), where persons are to be tried for serious violations of the laws of war and crimes against humanity.
The International Criminal Court (ICC) officially came into existence in 2002 following the 60th ratification of the Rome Statute, heralding a new era for the effective prosecution and punishment of serious violations of international humanitarian law, e.g. the ICC investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression. Today there are approximately 121 countries that have joined the Rome Statute system and then taken a stand for supporting the ICC to fight against impunity, so that perpetrators of such crimes are punished, and to help prevent future occurrences of these crimes. This idea is claimed as the cause of all the humanity. Thus far, ICC judges have issued 40 arrest warrants, by which 21 persons have been detained in the ICC detention center and have appeared before the Court, while 16 persons remain at large. No doubt, the ICC has been recognized by more than half of all sovereign states of the world. Yet, in the case of Russia, there is no question that the ICC acts naively to accuse President Putin for alleged war crimes involving abductions of children from Ukraine.
First, as some observer put it that the warrant marks the first time that the ICC has issued an arrest warrant against a sitting head of state. However, Russia, like China, India, Israel and the United States, has not signed on to the ICC, citing concerns about the court’s jurisdiction and potential impact on national sovereignty. Moreover, it remains a challenging issue whether it is a responsible act to issue a warrant of arresting a sitting head of state who has enjoyed wide support and sympathy from his people while the BRICS and the Global South have refused labelling Russia as an invader in the case of the Ukraine war. Finally, as one of the great powers of the world, Russia will never allow it happened to see its head of state being arrested as a war criminal since Kremlin spokesman Dmitry Peskov dismissed the charges outrageous and unacceptable. The only flash spot of the ICC’s investigation lies in political and diplomatic ramifications for Russia as the West could further isolate Russia from the international community or lead to much severer economic sanctions. Geopolitically, it becomes salient that the U.S.-dominated West has aimed to keep Russia down, as they did to Germany in 1919.
As a matter of fact, China has argued that Russia must be kept as a major player in the world affairs, not to mention its role in rebuilding the European security architecture. Historically, Russia has been one of the major powers of Europe to act a key balancer of European equilibrium. Today, the rise of China equally needs a powerful and prosperous Russia as its good neighbor and a geostrategic partner to counter any unilateral hegemonic world order. As China reiterated recently that over the last decade, China and Russia have followed the principles of good-neighborliness, friendship and win-win cooperation in advancing exchanges and cooperation in various areas. Under the new historical circumstances, the two sides will view and handle China-Russia relations with a broad vision and a long-term perspective, in a bid to bolster the wide-ranging cooperation between the two countries going forward.
It is worth noting that the ICC has also faced criticism and challenges over the years. Some countries—the United States, Russia, China, and India—have not signed on to the ICC, while many countries of the Global South have criticized the ICC of its bias against certain countries or groups of countries, politicization, and inefficiency. Obviously, some critics argue that the court is dominated by Western countries since it has unfairly targeted leaders from Africa while ignoring atrocities committed by leaders from other parts of the world. This is a very strong statement because on March 18, just as China’s President Xi was about to take his trip to Moscow, the ICC issued an international arrest warrant for Russian President Vladimir Putin for alleged war crimes. The warrant, which was flatly rejected by Russia as a political ploy from the West, was applauded by President Joe Biden and his allied partners. The basis of the claims seem to hinge on the fact that Russia took Ukrainian children out of the war zone and brought them to protective custody in Russia. Or put it simply, the claims seem to imply that Putin should have left the children in the war zone where they would possibly be killed.
Now it concludes that the ICC acts naively with a view to advancing a strategy that aims to jeopardize China’s desire to be seen as a broker for peace between Russia and Ukraine given that Putin is officially a war crime suspect. For sure, in the immediate term, the ICC’s warrant for Putin and one of his aides is unlikely to have a major impact on Russia’s image or China’s stance on the Ukraine issue. However, the stain of the arrest warrant could well work against China and Russia in terms of public opinion. In doing so, it is ridiculous to see the ICC as a fair court and transparent forum struggling for international justice and the world peace.
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 of the state possessing nuclear weapons. 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.
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