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The Grey Zone: Understanding a Nuclear Age strategy through the South China Sea Dispute

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The detonation at the Trinity test site near Alamogordo, New Mexico in mid-July of 1945 marked the beginning of the ‘nuclear age’. Three weeks later, the world saw what the “Little Boy” and “Fat Man” were capable of after they were dropped on the Japanese cities of Hiroshima and Nagasaki, respectively and the Hibakusha[1] are still the proof of that. This has increased apprehension among countries towards engaging in traditional warfare, thus making it inevitable for revisionist powers to employ alternative tactics to challenge the existing world order without any major escalation. This is where one can observe an increase in the use of the grey zone strategy, which is not a novel tactic and has been present since centuries. However it has reemerged, as the need of the hour in the present political climate is unconventional stratagem. It is an identifying strategy in the nuclear age which is resistant of a full blown out war. This strategic campaign has taken a new form in the current age with the aid of cyber weapons, advanced information technology and civilian tools allowing the increase in importance of the tactic and applicability.

Understanding the Grey Zone Strategy

The new approach has been provided a fertile environment to flourish with an increase in revisionist intent, strategic gradualism and employability of unconventional tool. The revisionist intent stems from the fact that major powers may want to change the existing global order. Although there is a wide spectrum of revisionist states, the “measured revisionists” (Mazarr: 2015) are the rising powers with value for rule-based order and no intent of aggressive warfare but they do expect a transformation of the existing system and to do so they will take cautious and impactful steps to make a difference. The reason behind the tactful approach is that they want to tilt the power axis in their favour without disturbing the system altogether. The international system is being witness to the revisionist states which shall employ the grey zone strategy to cure their dilemmas of being dissatisfied of the system while being dependant on it.

These revisionist states find gradualist strategy appealing, considering their cautious approach towards dismantling the system to their favour. It is a defining aspect of the strategy. The approach achieves gradual gains instead of immediate results. This includes an elaborate set of interrelated measures deliberated to achieve gradual progress. One fundamental purpose behind such an approach is to avoid any foundational conflict that “characterises conclusive strategies” (Mazarr: 2015). Salami Slicing is a classic theory of a gradualist approach that Thomas Schelling discusses in his classic work, Arms and Influence. The ambiguity of commitment is the central theme of the tactic. The reason behind such static according to Schelling is to diminish the credibility of the defender’s deterrent threats. Mazarr (2015) points out Daniel Altman elaborated concept of fait accompli which is “to grab a limited gain before the other side can respond, acting suddenly and decisively in a manner that poses the defender with a dilemma of acquiescing or pursuing a dangerous escalation.” The approach of strategic gradualism makes the task of deterrence and balancing complicated and this is reflected in grey zone conflicts.

The approach of strategic gradualism of the revisionist power is implemented through the employment of unconventional measures of statecraft that allows it to avoid being a traditional conflict. Many tactics and tools which are employed in the grey zone strategy coincides with classic unconventional warfare. Grey zone conflict also reflects a form of political warfare and employs a range of mechanisms to achieve targeted political objectives. According to Mazarr (2015) mechanisms and tools such as economic sanctions, energy diplomacy, cyberattacks, information operations to “generate revisionist narratives”, use of militia, fifth columnists,[2] and nonmilitary forces such as coast guards are not new, however the impact of these tactics have become unprecedented in present times. The amalgamation of these three aforementioned components accounts for the emergence and character of the grey zone strategy.

Zarr (2015) defined “the gr(e)y zone (as) an operational space between peace and war, involving coercive actions to change the status quo below a threshold that, in most cases, would prompt a conventional military response, often by blurring the line between military and nonmilitary actions and the attributions for the events”. The Strategic Multi-Layer Assessment (SMA)  team conducted a study of the grey zone and they defined (2016) it as “a conceptual space between peace and war, occurring when actors purposefully use multiple elements of power to achieve political-security objectives with activities that are ambiguous or cloud attribution and exceed the threshold of ordinary competition, yet fall below the level of large-scale direct military conflict and threaten (…) by challenging, undermining or violating international customs, norms or laws.” While, according to the Cambridge Dictionary, grey zone can be defined as “activities by a state that are harmful to another state and are sometimes considered to be acts of war, but are not legally acts of war”[3]

The definitions of the term highlight few basic characteristics essential to its meaning. One of the basic element is that of remaining below the threshold of justifying an international military response. Salami slicing is another key feature of this strategy, where they gradually move forward with their strategy towards achieving their objectives which are ambiguous instead of a knee-jerk advance. The third one is the deceiving nature of the actors which allows them to deflect any direct responses by disguising their role in the strategic campaign. The fourth aspect is reliance on historical claims with extensive legal and political justifications. The fifth characteristic is to not challenge the vital or existential interests of the defender of the present order. The hint at the risk of escalation as a source of coercive leverage is another major feature of the strategy which allows then to complicate deterrent threats. The strategy also employs nonmilitary tools to avoid impression of military aggression. Exploitation of specific vulnerabilities in target nations are typical in the working of the grey zone strategy. The primary characteristic of the grey zone is the dexterous use of strategic ambiguity to achieve gradual gains.

The South China Sea Dispute: A Case Study

In recent times, the strategic importance of the ocean waters in East Asia has risen exponentially, thus boosting the relevance of the security environment of South and East China Sea. Some primary reasons amplifying the strategic advantage of the maritime region are the access it provides to the resources of ocean energy, the South and East China Sea territorial conflict and the expansion of the naval power by the countries of the region. The South China Sea (SCS) dispute is considered to be an important territorial and jurisdictional dispute in modern times. It is a resource-rich area which is claimed by China, four Southeast Asian countries namely, Vietnam, the Philippines, Malaysia, Brunei, and by Taiwan. Since mid-1970s, numerous incidents have been taking place in the SCS with some major ones being the Paracel Islands incidents in 1974, the Johnson Reef incidents in 1988, the Mischief Reef incidents in 1995 and the Scarborough Shoal incidents 2012; which involved China vis-à-vis other claimant states. The stability of this particular region is relying on actions and reactions of China.

China’s Claims on the South China Sea

Efforts are being undertaken to create a foundation for a confidence building measure, but it has not been able to address the fundamental issues of the maritime region such as, territorial issues, access to natural resources, fishing rights and naval buildup.

The territorial claims of China in the SCS is represented by the “nine-dash line” enveloping 80% of the sea’s area in a U-shape published in 1948 based on a historical claim argument and not a legal justification under United Nations Convention on the Law of the Sea (UNCLOS). It is considered the main actor steering the events of the dispute. However, the map of the region was not included in any ‘official’ Chinese government document until it a note verbale was submitted to the United Nations by China in 2009 and made its claim known, internationally. Another, diplomatic correspondence asserting the claim was made on 14 April 2011 through a note verbale as a response to Philippines’ protest. The 2012 incident of Scarborough Shoal, led to Philippines initiating arbitral proceedings against PRC to challenge its claims according to UNCLOS. China however argued that subject matter of territorial sovereignty is beyond the jurisdiction of UNCLOS, thus refused to accept and participate in the arbitration.

China, to be able to strengthen its presence and increase its ability enforce naval law with the U-shaped line, the People’s Liberation Army Navy is mobilised by China along with the paramilitary and civilian naval bodies to assert de facto control over the maritime region within the demarcated line.  The nine-dash line along with the historical claim is still too ambiguous and it fails to explain the rationale behind those line placed. It is still unclear whether the claim is territorial, historical or a national sea boundary. This specificity shall make all the difference in the framework of UNCLOS.

But, in brief one can understand the claim of China extended to all land features in SCS, traditionally divided into the Dongsha Islands, the Xisha Islands, the Zhongsha Islands, and the Nansha Islands. China also claims all the islands in the SCS along with its adjacent waters on the basis of the historic right that China claims to have.

Security Dilemma of Other South China Sea Claimant States

This section highlights the security dilemma bet China and the five other claimants: Vietnam, the Philippines, Malaysia, Brunei, and Taiwan. Their attitudes towards the claim of China is different because of many factor, with Brunei being the least vocal and the Philippines and Vietnam being the most vocal.

The dichotomy of China vis-à-vis other five claimants exists because of many reasons, such as, all the claimants share the same concern that China might use military power to resolve the dispute, while China feels its legitimacy over the claim is decreasing because of lack of physical presence. All the Southeast Asian claimant states are ASEAN member and the 2002 Declaration on the Conduct of Parties in the South China Sea (the 2002 DoC) was made between China and ASEAN, which is political consensus to ameliorate worries of both the sides. There is also more skirmishes and protests between Chia and the Southeast Asian claimant states: the Philippines, Vietnam and Malaysia, but there is no notorious incident recorded among the Southeast Asian claimant states themselves. In fact, there is record of cooperation among them, such as the Vietnamese Foreign Ministry issuing a statement of concern urging parties to practice restraint while invoking UNCLOS and 202 DoC to maintain peace and stability.[4] Malaysian PM also forwarded his support to the then Philippine Vice President in May 2012, proposing a peaceful resolution in term with the international law.[5]

The overall security dilemma is primarily stemming out of anxiety. Uncertainty is the key element that has been dominating the series of tension in the maritime region among the Southeast Asian states, especially because the tension that rose between the period of 2007 and 20099 was unexpected.

Security Dilemma of the United States of America

The rigid attitude of China towards the SCS in recent times, has provided United States with the opportunity to increase its presence in Asia again. The strategic approach of the United States towards the region and adjacent waters is based three elements, first being to emphasise and strengthen the American relation with the treaty allies in the region and simultaneously increase contribution to regional multilateral organisations. Maintaining a strong presence military wise, in the region to maintain access to the maritime resources along with freedom of actions, while adhering to the international law is the other key element. The third element is integral to the strategy as it focuses on positioning the American naval power as the main actor promoting and upholding the international rules-based order.

The “pivot to Asia” security strategy of then President Barack Obama puts forth the United States as an Asia Pacific country, aspiring for an international order while providing a foundation for peace and prosperity, with rights and responsibilities for countries of the region, along with free trade and free transit which are not infringed upon. The American policy towards the sovereignty of the South China Sea has been consistent since 1990s, although at the July 2010 ARF Secretary of State Hillary Clinton said the United States will not involve itself in territorial disputes but it has maintained a clear position on the establishment of maritime border the claims of which must be on land, challenging the nine-dash line.

However, the issue has not been internationalised by the United States and is insisting on it being handled at regional level through bilateral negotiations. This is mostly because escalating uS military involvement is inconceivable, as tasing a role in strengthening the security in South China Sea will result in increased Sino-American discord.

Understanding the Grey Zone Campaign of China in South China Sea

The efforts of China to solidify its hegemony in the South China Sea, is suggested to be a case of grey zone strategy campaign. The actions involving series of disconnected incidents can be considered to be a the employment of two major tactics of the grey zone strategy, the salami slicing approach and fait accompli. The involvement of China, a revisionist power as the main actor with the approach of strategic gradualism through the employment of unconventional tools, fulfil the criteria to be categorised under the grey zone strategy. In the case of attempting to achieve one’s goal one can observe a series of disconnected steps by China, which add up to be a coherent grey zone strategy campaign towards the goal.

There are a number of actions of China which can be seen through the characteristics of the Grey Zone Strategy. Such as, the characteristic of pursuing political objectives through integrated campaigns can be seen in the action of China, outlining the political foundation to be able to claim the South China Sea area, through narratives, propagandas, and more. There are many components that seem like a coordinated coherent campaign involving: maritime, political, economic and military actions. They have also laid a groundwork for theoretical foundation to be able to incorporate an integrated non-military approach.

China has been observed to employ tools which are non-military or non-kinetic, which is also a characteristic of the strategy. They have instead employed economic tools, such as offering of aid, trade deals which are favourable, access agreements or threatening and imposing of economic sanctions on the other claimant states. The deployment of civilian fishing fleets and aircrafts to the disputed area to establish presence and reinforce claim is a paramilitary tool. They have also used energy as a tool by using oil rigs, energy agreements and aid as inducement. Diplomacy has also been employed through direct coercive diplomacy, by engaging in negotiation to establish a parallel rule-based order with the influence shift in the favour of Beijing. Informational tools such as statements, social media campaigns, spreading of narratives which is shaped by the information gathered through cyber capabilities and then threaten punitive actions are also employed extensively by China in the case of the South Can Sea dispute. These tools are unconventional and non-military, thus fulfilling a key component of the strategy.

China has also managed to stay below the escalatory threshold avoiding any outright aggressive military engagement or warfare. This can be observed through their use of unconventional tools which remain outside the UN Charter definition of “aggressive actions” that might trigger an escalation, leading to a war. They have also left enough space to manoeuvre and retreat to preserve that threshold and ease tension. China as also been taking long-term and incremental series of steps to achieve strategic objectives, showing their willingness to step back to be able to ease tension while preserving the progress they have made so far. This can be seen through the perspective of strategic gradualism by not seeking immediate decisive results in short period of time.

If one looks a all the disconnected steps as a whole, one can see a coherent picture of the strategy at play by the revisionist power. This places the Unites States in a difficult situation as the guardian of the present world order. Any sort of retaliation might seem as an overreaction or too soft to make any difference to the current situation in the maritime region of the South China Sea.

The Legality of Grey Zone Coercion in the South China Sea

The South China Sea law at this point in time is anything but clear. The older form of law governs the point of ‘historical claims’ to territory, while the newer form is defined by the United Nations Convention on the Law of the Sea (UNCLOS), governing the maritime claim measurable by territorial claim. South China Sea dispute fall at the intersection of these two laws at play, colliding with each other unable to provide a clear understanding of the outcome. The principle of international maritime law is the land govern the sea and China has tried to reconcile with the law through its official SCS claim document, with China’s official position iterating it as the “indisputable sovereignty” over the islands in the SCS region, along with the adjacent waters, seabed and subsoil.

China lays historical claims on Paracel and Spratly Islands in the SCS dating back to the second century BC, Western Han Dynasty.[6] Although it is true that China has strong connection to them but the claim was not indisputable. According to international law, there are various ways of acquiring sovereignty over territories, however conquest and subjugation is dismissed by Article 2 of UN Charter. It can be analysed that actions of China in the SCS were inconsistent and not uninterrupted, thus its claim to be the country first to continuously exercise sovereign powers over them is contestable. The maritime claim in the South China Sea is also vague, as the rights of historical claim is ambiguous and not governed by UNCLOS. The application of it varies from one coastal state to another, with one having only fishing rights with the other exercising full sovereignty. The problem with China’s claim of historic right is that is does not specify the rights that the country claims in its capacity to be considered historic.

China had enacted a Law on the Territorial Sea and the Contiguous Zone, thus establishing a maritime zone extending 12 nautical miles from its shores. 1998, a Law on the EEZ and Continental Shelf was passed setting 200 nautical miles for EEZ and because the U-shaped demarcated tea predates UNCLOS, geographical designation of waters inside the demarcated line is unspecified.

The point of origin has not been claimed by China, yet. China has the right to dispute its right over its claim in the sovereignty of SCS, however its claim is not indisputable. But, China often employs legal narrative and diplomatic overtures to legitimise its stance while undermining the claims of the other states. China has also started funding research on alternative approaches to international law, with focus on law of the seat and international economic law favouring China’s position.[7]

When laws are created, set categories, actors and elements are established. The purpose of it is to have a predictable and principled manner in which a conflict can be dealt with, which also acts as a deterrent. But in recent times, when grey zone strategies has managed to remain under the threshold of what can be understood as a violent act, thus making it difficult to apply the basic legal concepts related to war and the use force. Grey zone actors intentionally exploits these gaps present in the legal framework which predates this new normalcy of advanced tactics and strategies that are beyond violent and aggressive disruption of world peace.

The actions of China in the matter SCS has contributed to the weakening of the international law of the sea hurting all the countries, including itself because by defying the law, one might instigate to topple down a rule based order, allowing competitions to go beyond the purview of law. This has the ability to diminish the stability of the international order, gradually.  A strong way to respond to the maritime grey zone campaign is bringing a clarity in understanding the international law involved at the epitome of it in this regard.

Conclusion

The grey zone strategy, especially in the maritime domain will never be an easy situation to tackle. With sufficient suggestive evidence, one can assume that China in the case of the South China Sea dispute has opted to deal with the situation through the employment of the grey zone strategy to pursue its revisionist goals. But it is of course only suggestive and not conclusive, neither can be categorised in a watertight compartment. One must also keep in mind, that this strategy is not only time consuming but also ends up exhausting a lot of resources while at it. Therefore, the cannot be the only approach towards achieving ones revisionist goals, rather it can be one of the approaches while moving towards their ultimate goal. To retaliate such an approach, the ones safeguarding the present global order must have a coordinated response which is resolute enough to bring the situation under control. They must also portray a sense of enthusiasm to maintain such response ensuring that instigator rethinks the plans at hand.

Presently however, China has maintained a stronghold over this approach in the area of the South China Sea dispute and one can only wait to see what is their next step, for grey zone strategy is all about strategic gradualism.


[1] it is a Japanese word, which literally translates to “explosion affected people”, for the survivors of the bombing

[2] a group within a country at war who are sympathetic to or working for its enemies.

[3] “grey zone.” dictionary.cambridge.org, Cambridge Dictionary 2020. Web. 2 July 2020

[4] “Scarborough Shoal Dispute ‘Of Concern’,” Viet Nam News, 26 April 2012, https://vietnamnews.vn/politics-laws/223972/scarborough-shoal-dispute-of-concern.html (accessed 07 July 2020).

[5] Jerry E. Esplanada, “Malaysia Too Wants Peace in Panatag Shoal,” Inquirer, 31 May 2012, https://globalnation.inquirer.net/38389/malaysia-too-wants-peace-in-panatag-shoal (accessed 07 July 2020).

[6] China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea (People’s Republic of China Response to the 12 July 2016 ruling on the South China Sea territorial claims by the UNCLOS Tribunal), Beijing, 13 July, 2016, https://www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1380615.htm (accessed 08 July 2020).

[7] Ben Blanchard, “Amid Sea Disputes, China to Set Up Maritime ‘Judicial Center,’”Marine Insight, March 12, 2016. https://www.marineinsight.com/shipping-news/amid-sea-disputes-china-to-set-up-maritime-judicial-center/ (accessed 08 July 2020)

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International Law

Crime of Ecocide: Greening the International Criminal Law

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In June 2021, an Independent Expert Panel under the aegis of Stop Ecocide Foundation presented a newly-drafted definition for the crime of ‘ecocide.’ The Panel consisting of 12 international lawyers proposed that the Rome Statute of the International Criminal Court (ICC) should be amended to include ecocide as the fifth international crime along with the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The inclusion of the crime of ecocide in the Statute will entitle ICC to investigate, prosecute, and try individuals accused of causing grave harm to the environment.

The term ecocide comprises the Greek word ‘oikos,’ meaning house or environment, and ‘cide,’ meaning an act of killing. Premised upon the term ‘genocide,’ ecocide means the significant destruction of the natural environment by human actions. In 1970, it was first used by Arthur Galston, an American biologist, at the Conference on War and National Responsibility in Washington DC. The term was further quoted by the Swedish Prime Minister Olof Palme in his opening speech at the 1972 United Nations Conference on the Human Environment (UNCHE) in Stockholm. Since then, multiple efforts were made to include ecocide within international law. Interestingly, it was adopted as an additional crime in the early drafts of the Rome Statute; however, later, it was dropped due to the lack of an adequate definition. If succeeded this time, it will be a significant victory for the environment since none of the existing international criminal laws secures it as an end-in-itself.

Definition of the crime of ecocide

The Panel has defined the crime of ecocide as, “For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.

The definition comprises two thresholds that should be fulfilled to constitute a crime of ecocide. Firstly, there should exist a substantial likelihood that the ‘acts’ (including omissions) will cause severe and either widespread or long-term damage to the environment. In other words, along with the damages causing severe harm to the elements of the environment, such damages must have an impact on a wider geographical location or for an unreasonably longer duration.

It is appreciable that the Panel has widened the scope of the definition by incorporating spatial and temporal dimensions to its meaning. However, they have changed their position adopted in the previous legal instruments to employ a mix of conjunctive and disjunctive formulations in the definition. In addition to its severe nature, such harm could be either widespread or long-term to constitute a crime of ecocide. Thus, any severe and widespread activity, such as chopping down huge rainforests, could be attributed to ecocide. Similarly, any severe activity whose consequences prevail for a longer duration, for example, causing the extinction of a plant or animal species, could also amount to the crime of ecocide.

Instant reading of the first threshold indicates that the ecocide definition might include day-to-day human activities that contribute to greenhouse gas emissions and other environmental damages. It raises a question – Whether humans are environmental criminals? Though, it might be true that most human actions, directly or indirectly, are continuously degrading the ecosystem around us. However, the definition of ecocide is primarily concerned with the large polluters whose irresponsible activities at a massive level are a threat to the environment. Thus, to narrow down the ambit of the definition and identify criminal activities precisely, the Panel added a second threshold, that is, the ‘acts’ causing damage to the environment must be unlawful or wanton.

It means, only when the actions are either prohibited under national or international laws or indicate a reckless disregard for excessive destruction of the environment in achieving social and economic benefits will they amount to the crime of ecocide. The second threshold hints towards an anthropocentric approach of the definition and protects a range of human activities deemed necessary, desirable, and legitimate for human welfare. To determine the lawfulness of the acts, the actions should be seen with their potential social and economic values. The ecocide definition relies upon the principle of sustainable development to balance environmental destruction with human development and prohibits all destructive activities that outweigh their social and economic benefits. It also means that the definition places a ‘limited’ environmental harm outside the scope of the definition, which cannot be avoided for achieving social welfare that includes housing developments or establishing transport links.

The proposed definition is more concerned with the massive instances of environmental damages. It does not consider small ‘necessary’ ecological harms caused by day-to-day human activities. However, it is equally essential these negligible-looking destructive contributions of humans, made in their individual capacity, should not go unnoticed. These small contributions combined with each other also significantly impact the environment in the form of climate change, biodiversity loss, and other hazards. Thus, the reckless human lifestyle is a significant issue and needs to be regulated through some international code of conduct, if not as ecocide.

Undoubtedly, the proposed ecocide definition is a remarkable effort that should be appreciated for multiple reasons. First of all, the release of this definition indicates that the time has come to start penalizing environmental offenders and create deterrence so that such destructive activities can be minimized. It establishes the responsibility and accountability of big corporate houses and political leaders whose regular investments are causing substantial harm to the environment. Moreover, this definition founds its bases upon many core principles and concepts of public international law, international environmental law, international humanitarian law, and international criminal law. For instance, the principle of no transboundary harm, sustainable development, proportionality, and necessity are aptly referred to in the ecocide definition. Moreover, it also provides a sufficiently broad definition of the term ‘environment’ to primarily include any damage committed towards the earth, its biosphere, cryosphere, lithosphere, hydrosphere, atmosphere, and outer space.

Way Forward

Though the ecocide definition is a significant development, it still has to go a long way to be included in the list of international crimes. For this purpose, any of the 123 member states to the Rome Statute can officially submit the definition to the UN Secretary-General. The proposal has to be accepted for further consideration by the majority of the members through voting. Further, the text will be subjected to debates and deliberations and must be passed by a two-thirds majority of the members. Moreover, the member states need to ratify or accept the proposed text. Only after one year of such ratification or acceptance ICC may exercise its jurisdiction over the crimes of ecocide committed afterward. This entire process can take many years or even decades to get completed. It is also possible that the structure of the current definition might change in due course of its acceptance.

Today, it is unclear that whether this definition will succeed in amending the Rome Statute or not, but what can be said with certainty is that this definition will play a crucial role in building awareness and discourse around ecocide among the governments, corporate houses, professionals, and masses across the globe. With the pressing needs of humans and prevailing threats to the environment, it is the right time that the actions of the offenders should be regulated through the prism of international criminal law.

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International Law

Syrian Refugee Crisis: A Critical Analysis Concerning International Law

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Women and children at the the Turkey-Greece border at Pazarkule. © IOM/Uygar Emrah Özesen

The contemporary refugee law is primarily a product of the 20th century following the Second World War and the subsequent post-war refugee crises. The 1951 Refugee Convention on the Status of Refugees and its 1967 Additional Protocol are the noteworthy legal regimes. Although the definition of Convention 1951 continues to be the dominant definition, the regional treaties on human rights have continuously amended the definition in retort to changing circumstances and crises. The gap in the convention of 1951 is that it does not extensively define how the state parties must decide if a person shall compile with the definition of the refugee. The main objective of the modern refugee regime is that; at national and regional level, the individuals that flee their country due to threat of persecution must be protected under all circumstances.

The Civil War in Syria has lead many Syrians flee their own homeland where millions have fled and many have been internally displaced. Many of these existing refugee groups, if not most, live in desperation implying that refugees’ assistance and protection needs be addressed in host countries. States bear moral and ethical obligation towards ensuring the safety and protection of the individuals fleeing Syria. Western countries have also undermined and jeopardized their international commitment of protecting refugees’ human rights. The Regional Response Plan 2014 of United Nations High Commissioner for Refugees (UNHCR) is a $4.2 billion aid program for Syria. The plan mainly focuses on the financial assistance of the countries hosting Syrian refugees; where this assistance is certainly important; it does not seem to be an approach more equitable to share responsibility for refugees. The refugee convention and legal framework under International Law may be helpful in dealing with swift management of ongoing Syrian crisis. The study recommends for a larger responsibility to preserve refugees’ human rights and provide long term solutions through international law regimes with proper implementation mechanism.

REFUGEES

Under the International refugee law, Article 1(A)(2) of the 1951 Convention states that

“The term ‘refugee’ applies to any person who is outside the country of his nationality, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and is consequently unable or unwilling to avail himself of the protection of that country.”

As it was in the context of European Refugees escaping persecution prior to January 1, 1951, the concept had geographical and chronological constraints. Article (1)2 of the 1967 Protocol on Refugee Status abolished those temporal and geographical constraints.

PRINCIPLE OF NON-REFOULMENT AND FREEDOM OF MOVEMENT UNDER THE 1951 CONVENTION

Non-Refoulement on the whole mean non-return: it is not doable for individuals or foreign nationals to be returned by the host State to the country or place where they could be tormented, tortured or treated inhumanly and degradingly, in addition; where their life, liberty and freedom is threatened. The non-refoulement principle is the fundamental pillar of international law on refugees. It is an inherent component of 1951 Convention as regarded as a Customary International Law applied on every State irrespective of their ratification of the convention.

Article 26 of the Convention of 1951 states that the host States shall allow refugees to choose and move freely where they have taken refuge. Article 28 states that they must be provided with legal documents that would permit them to move freely anywhere wound their country of residence. The Freedom of movement is very important particularly in countries that host huge influx of refugees and have confined them in a particular area or refugee camps and have posed restrictions on their basic rights. The 1951 Convention also protects much other refugee rights for example educational rights, right of employment, justice and property rights.

The rights however are protected under the 1951 Convention and other International Treaties on the rights of refugees and more broadly the Human Rights but the refuges in their host countries are denied of their these basic rights and are often regarded as a national security risks to the state.

BACKGROUND OF THE SYRIAN REFUGEE CRISIS

Syria’s civil war has its origins in colonialism and the Iraqi War. The ethnic tensions and ongoing civil crisis date back to 2000 elections when Bashar Al Assad came in to power and the rising of Islamic State of Iraq and Syria (ISIS). Pro-democracy uprisings erupted in 2011 in response to persecution that were occurring in the Assad’s regime; the uprisings turned into a civil war. Syria by 2012 was entirely engulfed in that civil war and many had died by the end of 2015 by their own government. ISIS was part of the rebel forces, which created an atmosphere of terror. Civilians were subjected to transgressions; public executions and amputations became rampant. Religious minorities were also under great threat. In August 2013, a chemical warfare inflicted on its own people; as a result millions of Syrians were forced to flee their homeland and take hostage in the neighboring countries. Majority of them around 90% fled to Turkey, Jordan and Lebanon (neighboring countries) and around 10% made their way to Europe. While million fled the country, many thousands other are internally displaced and are still under great sufferings. According to a report of UN, approximately 70% of the Syrian population lacks basic necessities i.e., access to safe drinking water, extreme poverty and many children do not even go to school.

RECEIVING COUNTRIES AND THEIR COURSE OF ACTION

Despite their dire situation, Europe is hostile to Syrian refugees. They have put restrictions on their freedom of movement curtailing their rights granted by the international legal regimes and conventions. In Turkey, the refugees are often detained by the authorities and are forced to leave the country.  The Turkish authorities had flagrantly violated international laws; refugees are regarded as a security risk.  The ongoing conflict and instability in Syria have exacerbated the situation, forcing people to flee their homes and seek refuge in neighboring countries.

The existing literature includes number of records of International laws and the rights and obligations on refugees as well the host states but focus has been laid upon the crisis rather than the management of the crisis. In case of Syrian refugees, the existing literature highlights the historical context and ongoing situation of the crisis but has been unable to come to its solution with the help of International laws.

CONCLUSION

The 1951 Refugee Convention states that states should facilitate refugees’ naturalisation and assimilation to the greatest extent possible. States are obliged to provide legal documents to the refugees for the purpose of seeking asylum and obtaining the official status of refugees. The Refugee Convention seeks to require that the refugees must receive same public assistance as that of the nationals of the country and must be provided with financial assistance, property rights, and right of education and employment.  Both the 1951 Refugee Convention and the 1967 Additional Protocol are international treaties that mean they are binding on the signatories however the treatment of refugees and asylum seekers are considered to be a part of customary international law that is that the states that have not signed or ratified the conventions must also protect these rights of refugees. In the Syrian refugee crisis, many states have avoided their responsibilities and violated international laws relating to refugees by barring refugees from entering their respective territories and by claiming that the state has no jurisdiction over them by choosing the non-entrée approach keeping them apart of refugee law technically. However, in practice they do not meet the duties of the treaty.

To conclude, the essence of the research is that Burden Sharing is an as an intrinsic component of the refugee protection legal system framework and is critical and important in resolving the Syrian refugee crisis. Burden sharing is basically the distribution of responsibilities. In simple words it refers that specific arrangements must be made for the purpose of physical distribution of refugees. It is one of the main principles of International Refugee Regime. The documented origin of burden-sharing can be found in the preamble of the 1951 Convention. When addressing the Syrian refugee crisis in terms of international laws relating to refugees, it is pertinent to know that the existing legal frameworks in the countries hosting huge influx of the refugee crises do not incorporate many of the basic obligations of international law in relation to the rights and obligations of refugees, because none of these countries i.e., Turkey, Lebanon, or Jordan have ratified the 1951 Refugee Convention and the 1967 Additional Protocol. Syrian refugees have many rights that have been granted to them by the international conventions however, they are denied of their rights. This has made them vulnerable and entirely dependent on the financial aids and has increased illegal means of employment. The refugees are marginalized minorities who are facing troubles in integrating in the receiving countries.

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International Law

What have we learnt in the past century?

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It is 100 years since we were supposedly getting over the war to end all wars, World War I, and forming the League of Nations with the purpose of preventing such a conflict and slaughter happening again. Regrettably, the only good that came out of it was the proposal to form the League of Nations; it was not much more than an idea though otherwise stillborn and we needed another World War before something solid resulted, the United Nations with some teeth, although they need sharpening. It was the time that the Chinese Communist party was formed and has just celebrated its centenary. What have we done in the time, apart from multiplying ourselves by a factor of 3, and perhaps upsetting the planet on the way. There are exciting scientific advances, of course, some of which we must use to address the wasteful manner in which we live.

The 1920s and 1930s were times of turmoil, new ideas. Socialism in the forms of nationalism and communism, each with an end result of forming a ruling elite, who would brook little or no interference from their perceived mission. The damage from WWI caused a Depression in the developed world, many of them democratic in form, and this meant they paid not or were not able to pay enough attention to the looming Nazi power growing in Germany. In China, the communist movement was putting down roots, establishing itself and, in the Far East the colonies of British India and the Dutch East Indies, the elite of those nations were listening with sympathy to the socialism that was being preached in Europe.

The end of WWII saw the proponents of each doctrine, social/communism and free market capitalism/democracy sharpen their dividing lines which led to the Cold War between east and west. However, this is too simplistic; Britain, for example, after WWII voted in a Socialist Labour government, which promptly set about nationalising key industries and created the National Health Service, all the basics of socialism, central government control. The key industries didn’t prosper, lacking accountability and arguably fleetness of the free market and in time, after Thatcher, were returned to the private sector. This was not entirely successful as times changed, but the National Health Service has been deemed a success in the overall scheme of things, looking after a nation’s health. Perhaps it was different because it only required a social accountability.

Returning to the division of doctrine, emerging from WWII, this saw the sharp divide of Europe between, on the one hand the Lenin/Stalin communist, centrally controlled regimes of the USSR which had gathered within their scope, whether they liked it or not, many of the countries of Eastern Europe. On the other hand, there were the democracies of Western Europe, which were bolstered by the USA. Germany was divided into two parts but Berlin, the capital, which lay in the Soviet jurisdiction, was a separate entity managed by the four allies who had together opposed the Nazis, namely the USA, the USSR, Britain and France. This arrangement continued, not without its problems, until the new president, Kennedy, in 1961 made a declaration against communism which alarmed Kruschev, the Soviet leader by now since Stalin had died. A Wall was put up by East Germany/ USSR in Berlin in 1961, which became a symbol of the freedom of the west against the restrictions that the Soviet Union enforced. The East German communist government was alarmed at the very large number of their skilled citizens who were defecting to the west; the Wall brought the number down to a trickle, lasting until 1989 by when times had changed.

In the East, China at war end was in the grip of a communist movement that was fighting to overcome the nationalist forces of Chiang Kai Chek. The communists prevailed and the nationalists departed for the island of Formosa, today Taiwan, taking with them the Emperor’s ancient, valuable signatures of office, a bone of contention. Meanwhile, Japan was healing from the bitter defeat inflicted on it from WWII with the help of the USA and was showing its resilience in recovery towards becoming one of the fastest growing economies.

The first test of the new communist China came in the early 1950s in the Korean peninsula, where they wholeheartedly backed the forces of North Korea in their fight against the armies of the south, backed by the USA and its Allies from the western democracies, including Australia. A truce was signed after a few years of hard fighting, with no side obviously prevailing, and Korea was divided between North and South. To this day they have entirely different styles of government, the communist north being dependent on China with the people languishing in poverty while their ruling elite are well off, and the South being one of the Asian ‘tigers’ and one of the most successful democratic economies. The difference is glaring.

The next conflict between communism and a semi pro-democratic form of government, the Vietnam War in the 1960s, had different origins. It was originally part of an anti-colonial struggle to depose the French from their Indo-China possession, which also included Laos and Cambodia. The defining moment came when the French forces were beaten by the N. Vietnamese at Dien Bien Phu in 1954, which was a signal for the French to withdraw. The North Vietnamese government was led by Ho Chi Minh, who had also studied communism in Europe and been persuaded by its ideas.

The American government had been watching closely and were very worried that if all of Vietnam were to fall to communism, it would lead to the rest of Southeast Asia in time succumbing also. As the leader of the ‘free’ world the USA stepped in and gradually increased its presence to the point that it was perceived as full-scale war. The North Vietnamese devised a way in which they could frustrate the American troops by building a network of underground tunnels from which they could appear unexpectedly and avoid direct confrontation with the better armed American troops. The war did not seem to have an end, and either it had to be escalated or the troops withdrawn. The former route would require going to Congress in Washington and, since the war was becoming increasingly unpopular with the public this was not something that the US government would want to do. The Nixon government of the early 1970s decided on a strategic withdrawal and so the whole of Vietnam was taken over by the communist government of the north, the condition which the US had feared. But times had changed. The world was changing. Some countries were prospering and trading. The old communist guard was getting on, some dying.

In the meantime, India and Indonesia, each with current large populations and significant colonial histories, had leaders who had learned in Europe about socialism/communism. However, the countries they would be serving had large other complex problems to resolve. In India’s case they had to deal with its partition with a mainly Islamic country, Pakistan, on each flank. The Nehru led, mainly Hindu, faction had much sympathy with socialism and were suspicious of the west and western aid agencies such as the World Bank, which were not allowed in to help develop the country. India, for the rest of the century, moved slowly but did not make a move to either communism or the western democracies, perhaps because it inherited a system in which much power rested within the state governments. The national or federal government operated from Delhi in the form that the British left behind.

Indonesia spent the first few years from independence in 1947, establishing itself as a whole. Soekarno, the first president, was a gifted orator, and was a firm believer in socialism/communism, but was a poor administrator. The country had to fend off two break away actions in the 1950s in North Sulawesi and West Sumatra provinces, which were put down with some ferocity. An interesting development was Soekarno’s leading with the 1955 Non- aligned Movement which was held in Bandung. This firmly put him in the neutral camp, although his time in Europe had imbued him with left leanings. His inability to take the country out of poverty was greatly frustrating the political elite in Jakarta and when he was deemed to show his leanings towards communism, the Army with the elite had had enough. He had to go and forcibly resigned, bringing Soeharto to power. The USA, who had watched the moves carefully while, at the same time, being involved in Vietnam, were much relieved.

Soeharto made it clear that he had no liking for a communist form of government. He was also quick to realise that he needed the brains from the private sector to handle the economy. He appointed the Berkeley ‘mafia’, UC Berkeley trained economists to deal with the major problems of food, water and education to lift the country out of poverty which they did very successfully for thirty years. The country was run as a benign autocracy with a guided parliament which re-elected Soeharto every 4 years, until the Asian Financial Crisis struck and caused him to step down. However, well by then it was aligned with the western powers and was invited to join the G-17, the organisation of the world’s richest economies.

It should be added that the grouping of Southeast Asian nations – region that my colleague prof. Anis H. Bajrektarevic calls “the most multilateralised portion of Asia – Asia’s hope” – as the formed an alliance, ASEAN, in August 1967, to establish itself as an independent bloc, headquartered in Jakarta. Currently, there are now 10 countries in the bloc, originally five, with widely differing forms of government.

Come the latter part of the last century, other feuds, some centuries old, reared up to cause some alarm. They were not ostensibly part of the main struggle between rigid rules, centrally controlled communist regimes and the free market western economies, but the one of the Middle East involving several differing elements, on the face of it based on Judaism and its three offset branches, Jewry, Christianity and Islam. On his occasion the struggle had some of its roots in the Balfour declaration of 1917, endorsed in 1926 at a commonwealth conference, and the contrary non-acceptance of Israel after WWII, as a homeland for the Jewish people, by the Palestinians. It has widened out in a determination by a right-wing Islamic fundamentalist group to form a purely Islamic country, a caliphate. It fed off old rivalries and brought differing factions into conflict. It is not settled to this day, and Syria, a land of ancient civilizations, has been torn apart with a refugee crisis that has caused much discomfit in Europe. The politics of the Middle East are very complicated, variations of squabbles centuries old, and possibly unresolvable at this time. They, however, don’t seem to directly affect the main thrust of the proponents of the secular division between the democratic approach and communism to government. Although both the USA and Russia have an involvement, it is not their most important issue, although takes up time.

There are other disruptions in Africa and South America, but not greatly affecting the outcome of the main struggle between left and right. In much of Africa, where colonial power had held sway for many years and where a huge number of slaves had been shipped across the Atlantic to support the American and Caribbean plantations, little had been done to prepare the indigenous peoples to govern themselves. The extractive industries that were put in to take out minerals needed in Europe had systems in place which were devised to ship out the minerals to the controlling country. There was little or no attempt to better the country, in terms of education, infrastructure and skills development, where the extraction had taken place. The result was that the elite of the country, gaining independence, carried on the way things had been before independence and became hugely rich, while the poor just became poorer and poorer. A terrible legacy of colonialism! And certain countries in the north have, in the past few years, been severely affected by fundamental Islamic factions.

In the case of South (Latin) America, we have a mix of countries and the way they are run, significantly influenced by their Spanish or Portuguese legacy. The main problem is the growing and manufacture and the export of drugs and the emigration of people to the USA to get away from poverty. There is no major war ongoing although there have been attempts by some internal factions to take over a specific country for personal gain, which meets with the people’s resistance.

However, China is a large country with a centrally controlled communist regime in charge. In the past 30-40 years, with the passing of Mao Tse Tung and the accession of Deng the strict rigidity of the rules of government were eased and the economy started to grow. As a result, their economy has grown steadily, if not spectacularly at times, albeit from a comparatively low base and is now one of the largest in the world. They are not averse to taking new ideas from the west, sometimes openly but other times by stealth, which is of considerable concern to the west, which have established the norms, rules and rights of business. There was hope in the 1980s that they were changing and welcoming some democratic freedoms, but this altered in 1989 when a student demonstration was brutally quashed at Tienmanman square. The leaders had taken fright, things were getting out of control, and freedoms had to be curtailed and brought back under control. This was also a warning to the western democracies; there was only one way to do business in China and that was the Chinese way.

In 1997, the lease that the UK government held over the territories that encompassed Hong Kong was coming to an end and the territories were due to be handed back. There was some discussion on trying to extend the lease but this was really a non-starter. One of the terms that the British extracted in the departure agreement was that for the first 50 years the conditions which had been set up for the citizens of Hong Kong would be honoured. China agreed to approve the idea of ‘’one country and two systems’’. However, in recent times with Comrade Xi Jaoping feeling that his and the Chinese government’s power is on the increase he could ignore the agreement. There have been unsettling very large demonstrations in Hong Kong as Beijing turns the screw on democratic freedoms, and Hong Kong is brought in line with direct central government policy.

Furthermore, the government is trying to bring the Uighur people, who are of Islamic faith and live in Xinjiang to the west of China, the largest province, into line by brainwashing them. The Uighurs have  been treated to genocide, and are also used, not much better than slaves, to pick Xinjiang cotton, which is a significant and high quality product of this region. This is another worrying example of communist control, as George Orwell highlighted in his book entitled 1984. The UN and the American government have raised the issue strongly, but have been told it is a matter of terrorism!

In the past two decades or so the Chinese have ‘made’ small islands in the South China sea expanding their territorial waters illegally. The ASEAN countries have wakened up to this and showing signs of alarm as China are using these islands as military outposts. In short, they are testing the reaction of the Eastern ASEAN countries, who realistically are not strong enough to resist.  The USA are aware of this and watching carefully. It is still China’s government’s aim that Taiwan, R.O.C., comes under Beijing control.

The Chinese government would appear to have a policy to ensure that the country has the ability to widen its borders and, further afield, to secure by whatever means is most suitable the resources that the mother country requires. This would put it in a very strong position among all nations and supersede the work of past dynasties, justifying its central control. A communist Empire.

The other main country which espouses communism as per Leninism is, of course, Russia, which has always vied with the democracies of the west, unlike China which was rather left on its own, distance being a factor, until recent decades. After Kruschev, in the 1980s there was a time for a modicum of ‘honesty’ from the Russian government. They could not keep up with the economy of the USA with which they were attempting to compete. They released their hold on several European countries, such as Poland, Czechoslovakia and Hungary, and withdrew their border to a north-south line bordering Belarus and Ukraine, Estonia and Latvia and into the Black Sea. They retained a small piece of territory next to Lithuania which gives them a better outlet to the Baltic Sea and recently they took the Crimea illegally to secure a position in the Black Sea.

A few of the ‘freed’ countries have adjusted themselves in the years that have followed, for instance the peoples of Czechoslovakia decided to split along nationalistic lines into the Czech Republic and Slovakia. One has to draw attention to the former Yugoslavia, formed as a country of the southern Slavs, which was not part of the Soviet hegemony, which separated somewhat bloodily into its discrete parts, with the demise of Tito. This was the strongman who emerged from WWII and kept the disparate parts of Yugoslavia together and prevented the Soviets from adding it to the total taken. The countries that evolved from Yugoslavia were Serbia, Croatia, Bosnia Herzegovina and Kosovo.

The European Union has greatly enlarged since these countries became independent, could exercise their freewill, and confirmed their willingness to join the EU after invitation. The bloc now adds up to 27 member states and the centre of gravity which was firmly in the west, has shifted eastward significantly.

Russia has to deal with a significant, admittedly rather unwieldy, EU, as well as the powerful alliance, NATO, The North Atlantic Treaty Organisation, which was set up at the end of WWII to protect the western democracies with the involvement of the USA from any potential aggression of the USSR. Since the partial rapprochement of Russia in its adjusted format, over the past 3 decades, there is much less pressure on NATO. It doesn’t stop Russia trying to meddle with the former countries of the Soviet on their borders. Belarus has a regime that is close to the Russians, not necessarily the will of the people, and Ukraine, while looking west towards the EU, has had to fend off Russian aggression in recent times in which they lost Crimea. In the complex Middle East situation Russia offers support to parties that are opposed to western supported ones, for example Assad’s Syria. But overall, Vladimir Putin’s Russia does not pose as much of a long-term threat as the apparent threat offered by China. There is, from the people themselves, a wish to open up the country. However, this can be expected to take some time; change will be slow.

To return to the east, ASEAN as a bloc, partly modelled on the EU, is still feeling its way. In recent times, the military coup occurring in Myanmar has taken ASEAN by surprise. Their offer to mediate has been firmly rejected at the ASEAN annual meeting. This was to be expected as the military have been involved in actions against some of the Myanmar people almost continuously since Independence and in recent years the military have exercised utmost savagery against the Rohingya people. The country is of great strategic value to China and hence the Myanmarese can rely on their backing. Its value, apart from Myanmar’s considerable resources, e.g. the Jade mines of Kachin province, a nice earner for the military elite, lies in the fact that Myanmar provides a gateway to the Indian Ocean and thence access to China’s significant resources in Africa, where they have been slowly entrenching themselves for the part of half a century.

Looking ahead

Taking note of President Xi’s recent upbeat speech at the Centenary of the Chinese Communist Party, it is clear that the government of China feels confident that they are now in a strong position to push on with expanding their strategic aims. These will be pushed ahead by fair means or foul, honestly or not, by stealth if need be. If anyone dares to oppose them will get a ‘’bash’’ on the head! It is a warning to the western Allies. ASEAN should be concerned about the South China Sea.

Russia, in the next phase, will want to not upset matters too much and be reasonably content to have matters stay as they are. A significant revenue for them is oil supply to the EU. They have a growing mood in the populace that wants more freedom. This will be difficult to resist.

The Middle East has rumbled on for centuries. A solution does not appear to be likely in the short term although the majority of people just want peace so that they may live with a feeling of security. They cannot reach this position because the leaders feel they have some God-given mission to achieve first. There are pockets relatively peaceful, e.g. The Emirates.  

 The Liberal democracies of the west have some internal voices of dissent, but at the moment their biggest problem is dealing with a refugee crisis caused by the Syrian mess, and the peoples coming from Africa running away from poverty. These are all heading for Europe. The other area where there is a significant problem is the southern USA where there is an unrelenting movement of peoples coming from Central and South America, trying to escape poverty and/or poor government.

The problem has become larger in the past half century; the population has tripled without our becoming aware. The CO2, not surprisingly, has also increased which has alarmed some scientists, and the two issues may be related, because we breathe out CO2 as well as significantly use up more resources some of which, in turn, generate CO2. We must remember, however, that carbon dioxide is a building block of life; below 150 ppm the world starts dying, both flora and fauna. The world, whatever political persuasion, communist or democratic, has to take notice of the climate issue which is to be highlighted at the COP26 conference in November this year. It is interesting that the leading countries espousing these opposite forms of government, China and USA, are responsible for 36% of the CO2 output of the world, each of them, so far, shy of taking a leadership role. Will we see much progress on this issue if they don’t take a leadership role?

The Future

Science, building on what came before, has achieved almost unbelievable advances in less than a century. One of the foremost of them was finding the properties of the silicon chip, which led to the computer, becoming commercially available from the 1960s and thereafter aiding all aspects of scientific endeavour. Now we are looking at the digital age, and on into quantum mechanics and artificial intelligence. We have broken the barriers of space and there is a veritable limitless opportunity to be explored.

On the other hand, there are many more of us, 8+ billion as against 3- billion in the 1960s and we haven’t yet resolved the problems of poverty, pollution and paucity of some of our key resources, such as water, or why we have an apparent climate crisis.  The problems have only become bigger, which means the millennial and subsequent generations who will be brought up with the new sciences from a young age will have plenty to do. What sort of government will they have dictated to them or will they resolve a better system that embraces the better points of each, so long as there is adequate freedom of action?  

The world is changing; almost two thirds of its population already live in Asia and there is a shift in the ethnic balance. The United Nations is more important than ever; it has disappointed in not getting involved in a positive and robust way in certain disputes where a form of genocide has taken place, but they are constrained by their remit. Perhaps it requires a change of location from NY to reflect the changing population distribution and a time to review their raison d’etre.  

The new generation have inherited a number of problems but, at the same time, they have the skills and tools to deal with them. One can but hope they do use them and with common sense.

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