Connect with us

International Law

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

Published

on

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)

Continue Reading
Comments

International Law

Omicron and Vaccine Nationalism: How Rich Countries Have Contributed to Pandemic’s Longevity

Published

on

In a global pandemic, “Nobody is safe until everyone is safe”, – it is more of true with respect to the current globalized world system. It is said that crisis strikes the conscience and forces the ‘commonality of purpose’ on one another- and a major one in magnanimous scale. But the current Covid-19 crisis seems to have emerged in oddity with this very axiom, of course, due to self-serving, in WHO’s words- ‘self-defeating’ and ‘immoral’, approaches to dealing the pandemic by wealthy countries.

 A new and potentially more transmissible variant of Covid-19 virus, named Omicron by WHO, has been detected in South Africa. With scientists yet to be confirmed about new variant’s epicenter and its likely implication on human immune system, the emergence of Omicron has brought the long-warned case of ‘vaccine nationalism’– a phenomenon in which each nation prioritizes securing ample doses without considering impact on poor ones- to light.

Unheeded to the repeated warnings by scientists and pandemic specialists, many of the world’s richest countries had embarked on a vaccine-acquisition frenzy and hoarded jabs more than their requirements. Some countries have even gone to the extent that they had acquired up to four times what their population needed. Thereby, it has left majority of poor and developing countries, particularly those in global south, unvaccinated, with further risk of the virus being muted into more virulent variants, as in the case of Omicron.

A simple numerical data over vaccination rate across the world exposes the grotesques picture of pandemic recovery divide among the countries and immoral hoarding and hedging efforts on vaccine supplies by wealthy countries. As of now, whereas only 3% of people in low income countries have fully been vaccinated, the figure exceeds 60% in both high-income and upper-middle –income countries. In Africa, the most under-vaccinated and the epicenter of ominous Omicron, only some 7% of its 1.3 billion people are fully immunized.

Given the 9.1bn vaccines already manufactured and 12bn expected by the end of this year, the question is- why does vaccination effort remain so discriminatory and dividing across the regions? The answer, in most part, lies in the ‘pervasive economic inequity’ inherent in initial vaccine-acquisition process. With their enormous capacity to pay out, rich countries, even before pandemic took devastating hold, had pursued a ‘portfolio-approach’ in investing on vaccine development research by pharmaceutical companies- simultaneous investment on multiple ones. In exchange, those countries stroke bilateral deal with each drag company to secure enough prospective vaccine doses to inoculate their respective population several times over.

This absolutist vaccine-acquisition drive of wealthy nations had substantially thwarted the holistic approach taken up by World Health Organization(WHO) under the platform of COVAX, a vaccine sharing program. With the aim of reducing the delay in vaccine allocation to poor and developing countries, and thus ensuring vaccine equity, the multilateral platform didn’t get enough incentives from wealthy ones, since started its journey in April 2020. Both investment and acquisition by well-off countries, having bypassed the COVAX, kept them into the front of manufacturing line, thereby, contributed to the distributional injustice.

‘What starts wrong ends wrong’- initial absolutist approaches in vaccine acquisition started to be manifested in discriminatory distribution of vaccines. Thereby, an amazing scientific breakthrough, development of vaccine in record time, has been offset by awful political policy. In mid-2021, when one portion of world were almost on the track of carefree normalcy, people in bigger portion were struggling to breath. Today, problem is not in production of vaccines, as 2 billion doses of vaccines are being manufactured in every month, rather in the ‘unfairness of distribution’.

Early monopolistic exercise by G20 on acquisition and subsequent stockpile of vaccines has resulted in such galling situation that they have commandeered over 89% of vaccines already produced and over 71% of future deliveries. Consequently, the global inoculation drive, since started, is so unjust that for every vaccine delivered to the poorest countries, six times as many doses are being administered as third and booster vaccines in the richest countries. Adding further to the crisis being escalated, while more than 100 countries, for past one year, have desperately demanded emergency waiver on TRIPs related regulatory restriction on Technologies crucial to pandemic recovery, it has repeatedly been blocked by UK and EU.

Picture is not all-about gloomy with respect to vaccine collaboration but it is quite tiny to the scale of requirements. Rich countries could not deliver on the commitments they did to help poor countries immunize their population. For instance, WHO’s target of having 40% of global population vaccinated by end of this year, through COVAX, seems certainly to fall short largely due to the rich countries failing to deliver on their promise to use their surplus vaccines to immunize the under-vaccinated countries. Far from near, the G7 countries had drastically failed to deliver on their promises made on G7 summit in June. As of last week, USA has delivered only 25%, with further embarrassing arithmetic of EU only 19%, UK 11% and Canada just 5%.

Given the frightening predictions from WHO that another 5 million could be added to the already 5 million death tolls across the world, in the next year or more, it is high time starting a collective endeavor with herculean efforts to inoculate large swaths of unvaccinated people in un-protected areas. Keeping large portion out of vaccination will only make the pandemic endure with no time to end, as virus continues to persist through mutating in un-protected area into a more menacing variant. If so, then again someone else may say, after next the worst wave-We were forewarned- and yet here we are.             

Continue Reading

International Law

The Nuclear Weapons Ban Treaty (TPNW): Wishful daydream or historic milestone?

Published

on

The Treaty on the Prohibition of Nuclear Weapons (TPNW), adopted in 2017, has entered into force on the 22nd of January of this year and the number of ratifying states continues to grow, with Mongolia being the latest to announce its accession. This positive trend is certainly welcomed with enthusiasm by the Civil Society campaigners and growing number of supporters of this treaty that represents a huge step forward for the global movement to draw attention to the catastrophic humanitarian consequences of any use of nuclear weapons. It would certainly be dishonest to ignore the fact that this new international legal instrument remains controversial, to say the least, for most of the members of the so-called nuclear deterrence community. As preparations are ongoing for the first Meeting of States Parties, scheduled to take place in Vienna on 22-24 March 2022, it is useful to address some of the main doubts and arguments against the treaty.

In this regard, the main criticism is that it makes no sense to support a treaty on nuclear weapons if those states that possess them have not joined nor any intention to join it.  

In order to address this claim, it may be useful to recall that in the case of the Mine Ban and the Cluster Munition treaties, its main promoters and supporters were also states that did not possess those weapons, and that those international instruments also received some harsh criticism for this reason. Despite of this, there is no doubt now that both of those treaties have become remarkable success stories, not only by achieving the goal of approaching universalization, but also by consolidating a general moral condemnation of those categories of weapons. Therefore, the argument that a treaty necessarily needs to be joined by the possessors of the weapons can easily be rebutted. Despite of the current position of the nuclear weapons states, each new ratification of the treaty is not meaningless: on the contrary, it provides the treaty more authority and contributes to the growing pressure on nuclear weapons states to adopt further steps towards nuclear disarmament.

The other major contribution of the TPNW is that it facilitates the process of delegitimisation of nuclear weapons, necessary to finally amend the well-established foundations of nuclear deterrence doctrines. The humanitarian principles that are underlying the treaty are totally incompatible with those doctrines, and therefore are having an impact on them by highlighting the inherent immorality and illegitimacy of nuclear weapons.   

Another argument for the case of ratification is that it provides states the opportunity to support the process of democratization of the global debate on nuclear weapons, as this new treaty has been the result of a very open discussion with active engagement of delegations from all geographic regions and, in particular, of representatives of Civil Society. This is not a minor aspect of this process, but a key element. Indeed, unlike in negotiations of previous international legal instruments, in this era of growing complexity and interlinkages, the main challenges faced by humankind are being addressed by a diverse group of citizens, from all walks of life and regions. Traditional diplomacy is certainly not enough, and in the case of the TPNW, the positive results would clearly not have been possible without the decisive boost provided by the International Campaign to Abolish Nuclear Weapons (ICAN), which was able to mobilize Civil Society and likeminded governments towards the goal of negotiating a nuclear weapons ban treaty. 

While it would be naïve to expect the establishment of the nuclear weapons states to be convinced by the humanitarian narrative and in a foreseeable future to amend its defence and security policies base on nuclear deterrence, the TPNW and its focus on the security of the human being instead of the traditional notion of the security of the state, are already having an impact on the academic and public debates in those states.

The second argument used by its critics is that the TPNW weakens the Non-Proliferation Treaty (NPT).  Actually, this is not only incorrect, the opposite is true. In fact, the TPNW can serve as an initiative to help implement article VI of the NPT, by which parties are committed to undertake to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament”. This is of vital importance as the treaty clearly attaches a key role to all parties, and not only to those states that possess nuclear weapons. This commitment has also been reflected in the Final Document of the 2010 NPT Review Conference, and the TPNW can be understood as a reflection of that obligation to contribute to nuclear disarmament by non-nuclear weapons states.

Another common point is that the nuclear weapons industry is too strong and well consolidated and that it would be naïve to pretend that this treaty could actually have an impact on investment decisions.

This pessimism has also been proven wrong. In fact, in 2021, more than one hundred financial institutions are reported to have decided to stop investing in companies related to nuclear weapons production. As a result, the nuclear weapons industry is experiencing a considerable reduction and the trend towards the exclusion of this sector from investment targets is growing steadily. This is not only the consequence from the legal obligations that emanate from the TPNW but a reflection of the devaluation of the public image associated to these industries. As this public image continues to deteriorate, it is likely that this trend will continue and that the moral condemnation of these weapons of mass destruction will be absorbed into the mainstream of society.

Another common misinterpretation is that the TPNW should be understood as an instrument that is only designed to be joined exclusively by non-nuclear weapons states.

In fact, even though the treaty was developed by non-nuclear weapons states, it has been drafted and negotiated with the goal of universal adherence, including, someday, those states that still include nuclear deterrence in their national security doctrines. In particular, the TPNW establishes a clear set of steps for nuclear weapons states in order to eliminate their arsenals of nuclear weapons. Specifically, within 60 days after the entry into force of the treaty for a state party that possesses nuclear weapons, that state must submit a plan for the complete elimination of its nuclear weapons to a competent international authority that has been specially designated by states parties. The treaty also includes a process to designate a competent international authority to verify the elimination of nuclear weapons by a state before acceding to the treaty, and a process for states parties that maintain nuclear weapons in their territories for the removal of these weapons and report this action to the United Nations Secretary General.

It is also noteworthy that this treaty obliges states parties to provide adequate assistance to victims affected by the use or by testing of nuclear weapons, and to take the necessary measures for environmental rehabilitation in areas contaminated under its control. This dimension of the treaty constitutes an important contribution both to the protection of human rights of victims and to the now inescapable obligation to protect the environment, which are aspects that are not covered by the Comprehensive Nuclear Test Ban Treaty (CTBT). This certainly does not affect the value and vital role of this key instrument of the nuclear disarmament and non-proliferation regime but complements it by addressing the fundamental issue of environmental reparation.

The main challenge now is now not only to achieve a wider universality of the TPNW, but to engage more stakeholders and create awareness on the urgency of bringing pressure on the nuclear weapons states to finally move toward nuclear disarmament. In this regard, Civil Society initiatives have been promoting engagement of members of grassroots, parliament, the media and city governments, particularly in nuclear weapons states, which has had impressive results, with hundreds of local governments expressing support for the treaty and generating discussion among the population. These initiatives serve the purpose of putting pressure on politicians and especially, to facilitate a discussion within democratic societies about the sustainability and risks involved in the possession and harboring of nuclear weapons.

Indeed, the TPNW has a long way to go and overcome many obstacles to achieve its objective, but in its first year of entry into force, it has already had an undeniable impact on the nuclear disarmament and non-proliferation debate, despite the expected skeptics and efforts to ignore its existence stemming from the still powerful nuclear deterrence establishment. Most of its technical experts, academics and government officials honestly believe that nuclear weapons have helped to guarantee peace and stability to the world and therefore should continue as the foundation of international security doctrines. These well-established ideas have been based on the questionable assumption that the deployment of these weapons have avoided war and can guarantee permanent peace for all nations. This has served as a sort of dogmatic idea for many decades, but recent research results have shown that the risks involved are significantly higher and that the humanitarian consequences would be catastrophic for every citizen of the planet. The humanitarian impact paradigm, which underlies the process that has inspired the TPNW, has provoked a tectonic shift in the nuclear disarmament and non-proliferation debate, which had been limited to the NPT review conferences with its often-frustrating results. Certainly, the persistence of the different approaches needs to be addressed in a more constructive discussion among the supporters of this treaty and the deterrence community.

Finally, the fact that the first meeting of states parties of the TPNW will take place in Vienna is very meaningful as Austria has been one of the leading nations in this process, particularly in drafting the Humanitarian Pledge to fill the legal gap for the prohibition of nuclear weapons, which has been a decisive step towards the treaty that has already fulfilled that commitment. Despite of all the difficulties and the persistence of significant resistance, the active and committed participation of diplomats and Civil Society representatives, under the leadership of Austria, allow to envisage that this first meeting will help to strengthen the treaty and move forward in the long and burdensome road to the final objective of achieving a world free of nuclear weapons.

Continue Reading

International Law

Regional Mechanisms of Human Rights: The Way Forward: Case of South Asia

Published

on

Long debates have evolved since the 1948 UDHR as to whether human rights should always be perceived as universal, or whether they need to be regarded as contextual on regional and local cultures. If we look at  Art. 2 of the UDHR the rights apply “with no distinction given to their race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Still in spite of this, the universality has been criticized by some, who argue that by claiming human rights are universal, we ignore and undermine the cultural differences that exist between societies in different parts of the world

Historically, the first written evidence of human rights was found in the famous universal declaration in 1215 A.D., popularly known as the ‘Magna Carta’. Along with the same, there were many thinkers like Hobbes, Locke Rousseau, Milton, and Voltaire who argued in favour of  individual rights and with passage of time and the conclusion of two world wars, the United Nations Organisation came into being on 24th October 1945 that replaced the League of Nations.

Further, the Universal Declaration of Human Rights that was established in 1948 and is considered a milestone in the field of human rights whose primary aim is to protect and promote human rights. In contrast to the said aim, the critics of the UDHR label it as a Western-biased document that fails to account for the cultural norms and values which exist in the rest of the world. It is only with regard to a group of certain core rights like that are listed in the human rights treaties as ‘non-derogable rights’ or considered jus cogens such as the prohibition of the use of force, the law of genocide, the principle of racial non- discrimination, crimes against humanity, and the rules prohibiting trade in slaves and piracy that consensus among nations exist.

The core of the issue is that a group of nations are seeking to redefine the content of the term “human rights” according to their own social and cultural experiences as they argue that the principles enshrined in the Universal Declaration reflect Western values and not their own. These countries sign many international human rights treaties and conventions, but the use of reservations and internal obstacles

jeopardize their implementation. Such claims of social and cultural differences in the past have been dismissed by the western countries and the USA who dismissed such claims as being a screen behind which authoritarian governments can perpetuate abuses.

Coming to South Asian Nations, there does exist violations of human rights in India as there is an absence of any regional framework that can hold the government responsible for the acts committed or provide a forum to individuals to appeal against the decisions of the Courts like the one existing under European Court of Human Rights. To illustrate, the aspect of women’s rights needs consideration and improvement in the daily lives of women to meet the gap between formal rights and actual implementation of the same.  What this means is that there exists a necessity to focus on translating the universal values enshrined under International human rights to local contexts that is the only option available to human beings irrespective of the geographical location to the ideals of equality and freedom from discrimination

In this context, there arises a need for establishing regional and sub- regional human rights codes or conventions. This has also been recognized by the United Nations since in absence of a universal approach that the South Asian states refuse to adopt, it is through regional initiatives that the motives of human rights could be achieved. The need for a regional initiative becomes even more significant because unlike Europe, America, and Africa there is no inter-governmental regional system for human rights protection in South Asia. In practice, the reason cited is that the human rights debate revolves around the South Asian views or perspectives. Although the South Asian governments have ratified international human rights instruments, they fail to reflect in the national constitutions or laws of most governments.

The fact that human rights will enjoy certain specificity in South Asia, still to be elaborated and applied, however, does not mean less for the universality of human rights. The reason being that the international human rights do not originate from merely one homogenous European value system or culture, but from various heterogeneous sources, some of these existing in the long history of South Asia. Thus, human rights are universal not only in their applicability to all human beings in every corner of the world, but are also universal because they originated from every corner in the world.

Continue Reading

Publications

Latest

South Asia2 hours ago

India’s open invitation to a nuclear Armageddon

Army chief General Manoj Mukund Naravane said that “India was not averse to the possible demilitarisation of the Siachen glacier...

East Asia4 hours ago

The role of CPC in supporting leadership schools in democratic countries

The Department of International Communication is officially under the Central Committee of the Communist Party of China “CPC”, known by...

Development8 hours ago

Guterres Calls on Private Sector to Help Developing Countries with Post-Pandemic Recovery

In a special address at the virtual World Economic Forum Davos Agenda 2022 on Monday, United Nations Secretary-General António Guterres...

NarendraModi NarendraModi
Development10 hours ago

Modi Urges All Countries to Embrace Sustainable Lifestyles

Prime Minister Narendra Modi of India used his address to the Davos Agenda 2022 to call on all countries to...

Finance13 hours ago

China: $1.9 Trillion Boost and 88M Jobs by 2030 Possible with Nature-Positive Solutions

Nearly $9 trillion, two-thirds of China’s total Gross Domestic Product (GDP), is at risk of disruption from nature loss. Making...

Health & Wellness15 hours ago

UN-backed COVAX mechanism delivers its 1 billionth COVID-19 vaccine dose

With a 1.1 million jab delivery in Rwanda this weekend, the World Health Organization’s multilateral initiative to provide equal access...

Development17 hours ago

Xi Jinping Calls for Greater Global Cooperation to Tackle Common Challenges

President Xi Jinping of China called for stronger international cooperation in overcoming shared global challenges including defeating COVID-19, revitalizing the...

Trending