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Southeast Asia

France, Germany and the UK note verbale to the UN on the SCS issue

Prof. Pankaj Jha

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Following the enlistment of Chinese companies under sanctions by the US for involvement in SCS for reclamation of islands, there has been increasing pressure on Chinese establishment for course correction. In total, about twenty-four Chinese companies, and their management individuals have been listed under the US sanctions. These 24 companies have been placed in the sanctions list, and the US companies are barred from entering into any trade or investment dealings until unless they have specific permission from the US government. This effectively means that any transfer of technology, software, and associated agreements will be presumed as denied from the US government.

One of the critical companies which will be majorly affected and has been engaged in infrastructure projects such as ports development and highway construction would be China Communications Construction Company(CCCC) which has been involved in more than 80 projects across the world. These sanctions have been complimented with visa denial and restrictions on Chinese individuals who are responsible and are directly involved in the large-scale reclamation, construction, or incremental militarization in the disputed seas. The visa restrictions have been comprehensive, and includes individuals and their immediate families.

Following this US response to the Chinese island reclamation activities, NATO countries such as France and Germany have already outlined their Indo Pacific strategy and have try to take cognizance of the fact that island reclamation and militarization in the South China Sea would be detrimental to their interests in the region. The US sanctions on the Chinese companies would have comprehensive impact as many other nations which would be doing business with this companies would be apprehensive of collateral impact from US, in case they engage these companies in the long term projects in their countries.

Closely following the NATO partner Germany, the UK and France have also made a representation to the UN in the form of a note verbale submitted to the UN on 16th September on the developments in South China Sea. This buttresses the Malaysian representation made to the UN in December 2019 related to the commission on the limits of the continental shelf. This note verbal also reposes faith in the United Nations Convention on the Law of the Seas (UNCLOS) as the framework under which the activities related to the oceans and the seas must be addressed.

The provisions of UNCLOS resonated under the PCA ruling on the issue of Philippines and China dispute related to contested islands in South China Sea. The PCA ruling had adjudicated that the UNCLOS should be the reference for resolving disputes related to maritime zones, territorial seas, and defining the Exclusive Economic Zones (EEZ)of the islands which are uninhabitable. Given the fact that France and the UK are the permanent members of the UN Security Council while Germany is a UNSCaspirant, this note verbalegains significance in the current context. This also reinforces the fact that Indo-pacific would be the epicenter of development in the region and in order to safeguard their interests the European countries cannot ignore intimidating tactics adopted by the China at the sea.

While it is understandable that France has a number of territories in the Indo-Pacific region which comprise more than 80 per cent of its total EEZ but Germany taking an anti-China stance shows shifting priorities. Germany foreign minister during press briefing has expressed that Germany would like to work together with the countries in the Indo Pacific region and would be a participant in the rules based order. The three countries -the UK, France, and Germany are critical in pressurizing China to adapt to the international regulations related to the law of the seas and must acknowledge that freedom of navigation, overflight, and the right of innocent passage are the legitimate rights of the littoral countries as well as extra regional powers which have trade and commercial interests in the region. The US has not acceded to the UNCLOS but the three countries have acceded to it. It is also seen as the fact that the US is trying to galvanize NATO countries in support of its initiatives and military deployments in the South China Sea. The three countries also have extensive business and trade interest in the region, and have trade relations with Korea, Japan and Taiwan. Therefore, increasing tensions in the South China Sea would increase their freight costs as well as insurance costs.  This would make their exports expensive and would affect the market dynamics.

The increasing resistance to Chinese assertive activities started in in December 2019 when Malaysia made a representation to the UN about the extended continental shelf. This has been supported by identical representations and statements made by littoral countries of South China Sea which included Vietnam, the Philippines, Indonesia and even a public statement by Brunei. The US also made a strong rejoinder to the case and extended support on major issues that have been highlighted by the various countries include the issue of baselines, the low tide elevations of the rocks, islets and uninhabitable islands, and the issue of Chinese concocted history which is in contravention to the established international order.

In response to these submissions made by the three European countries, China has stated that it treats the UNCLOS as an established order but abhors its use as a political tool. Citing reservations to the UNCLOS, it has stated that it does not cover everything related to the maritime order. Citing paragraph 8 of the UNCLOS it has stated that “matters not regulated by this convention continue to be governed by the rules and principles of general international law”. This clearly means that China wants to derive new meaning which suits its own interests and reclamation activities in the South China Sea. The UNCLOS has made it very categorical that parties which have acceded to UNCLOS must comprehensively and correctly interpret the rule of the law of the seas. In its representation China has stressed that it has a long history, and the Chinese governments under different leaders have expressed their sovereign rights on the islands in the South China Sea. In the submission China has completely castigated the PCA ruling of July 2016, and stated that the sovereign rights of China on those disputed islands cannot be prejudiced by the illegal awards made under any arbitration or ruling .The biggest irony in the statement is the fact that it believes that UNCLOS  is not effective neither implementable in the context  of South China Sea but China claims that territorial baselines related to the islands and rocks are in conformity to the provisions of UNCLOS; clearly showing the dichotomy between  conditional acceptance and comprehensive selective utility.

The long response that China has made with regard to submission by the three European countries clearly highlights the fact that China is under pressure to accept legal provisions and maintain law and order at the sea. In the letter in response to these representations, China has made it very clear that it is making sincere efforts through friendly consultations with the ASEAN countries. The representation made by UK, Germany and France has brought about an international dimension to the whole issue. In total the number of countries which have raised objections to China’s reclamation activities have increased to more than 10 countries which have been seen as regional powers and have clout in the UN.

This also empowers Vietnam which is the current chair of ASEAN to undertake wide-ranging discussions on the topic during the summit meetings and in a way coerce China to undertake effective course correction measures. The hyperactivity which China has shown with regard to Taiwan, and military exercises in the South China Sea, have brought about international attention and raised serious concerns with regard to the developments in the region. The US exercises has been matched by China with undertaking surveillance sorties, scrambling of advanced fighter jets and infringing on EEZ of littoral countries. Therefore, it requires effective countermeasures as well as international condemnation of the Chinese activities. One can very well understand the fact that with China being at the receiving end of the international criticism in the wake of the coronavirus and subsequent domestic dissent shows that China would try to rake up hyper nationalism so as to protect President Xi from stigma. However, with majority of UNSC members expressing dissent the pathways for China are going to get tough in future.

Pankaj Jha is faculty with Jindal School of International Affairs, O P Jindal Global University, Sonepat. He can be reached at pankajstrategic[at]gmail.com

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Southeast Asia

Lessons from Cambodia and the way ahead- quest for peace and reconciliation

Girisanker SB

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Khieu Samphan (left) and Nuon Chea in the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC). File photo. Photo: ECCC

Victims are Cambodians, the criminals are Cambodians, and the crimes were committed on Cambodian soil!

This was the justification given by the Cambodian Government under Hun Sen to establish the Cambodian Khmer Rouge Tribunal (KRT) formally known as the Extraordinary Chambers in the Courts of Cambodia (ECCC) – a hybrid Cambodian-International Court in conjunction with the International Community in 2006 under the Cambodian law to try leaders most responsible for perpetrating gross violations of human rights during the Pol Pot and Khmer Rouge period from 1975 to 1978. However, even before the establishment of the Tribunal, the members of the International Community in the panel was reduced in compliance with the request made by Cambodia at the UN General Assembly moreover with its implementation the Tribunal witnessed an increased political interference diluting the whole process. Thus the success of any such program will depend on the commitments and cooperation from the Government

Compromise made over justice for Peace and Reconciliation and its worth

With its 16 years of work in the country, the court is now coming to close with sentencing just three of the perpetrators for life imprisonment – despite the heavy investments made by external actors and of the struggles and the criticisms faced, as a result of adhering to the Cambodian Government’s request pointing to a renewed civil war within the country- destabilizing peace, economic growth, social order, and political stability, if the court moved ahead with its trials.

Thus, there was a dilemma on how to balance the prospective and retrospective justice, most importantly the Tribunal has been a setback to scholars of Transitional Justice, who believed to achieve through the TJ mechanism, a strengthened rule of law, democratic transition, and fair and transparent political institutions that victims can trust, instead, the court helped in legitimizing the authoritarian regime. The failure was more associated with the political compromise allowed to be made respecting the sovereignty, thereby allowing the government to choose how to deal with its violent past, while the critics point out “whether there had been a better option”.

However citing the Cambodian case study, questions have been raised against the scholars who preferred the ‘maximalist approach’ emphasizing the justice, on whether it had been possible and was practical to carry out the trials for all perpetrators or for the criminals who conducted the gravest crime, to stop the elite from securing impunity, strengthen the democracy or to serve as a model contributing to a strong independent judicial system. Critics also pointed out the heavy expenditure incurred, pointless testimonies and documentaries submitted as evidence, against victim’s testimony censorship, and on the accessibility of the court system to the poor. Debates also brought in the need to consider the time factor for retributive justice, pointing the consequences associated with the delay made in taking action (by the time court decided to sentence criminals for life long sentences, they were suffering from old age diseases, and even some of the victims were suffering from amnesia).

Cambodian Dilemma and questions raised against Transitional Justice

The Cambodian case brought in new dilemmas for retributive justice supporters with the ‘Karmic justice’ belief by the victims, pointing out how cultural barriers can affect the Westernized Transitional Justice mechanisms and asking to what extent does Transitional Justice appear as ‘savior’ for the victims of Khmer regime and against the TJ’s employing of particular tool-kit without understanding society and of expecting the local populations to fit into their prescribed template and finally against the voices that speak for or represent the victim’s demands. The whole idea of the hybrid court thus gets questioned with Cambodians different understanding of justice. This understanding has also questioned whether the justice had contributed to reconciliation (which some scholars consider as complementary strands of peace-building), through the reparations, forgiveness, and apologies for historical injustices made to repair the relationships between victims and perpetrators.

Different voices have been raised- some claiming reconciliation remains elusive with many of the members involved in the violence still serving in the Government, thus questioning the Government’s legitimacy and on the interest of the International actors to entrust them to carry out the TJ mechanism, and against the resistance of some International actors and the Government to dig into the past and on fixing the time frame for transitional justice actors to look into, critics also points out the emotionless and insincere apology made by the perpetrators which revictimized the victims and on giving amnesty to perpetrators purely on regimes interest and finally on classifying the perpetrators as poor thus not allowing the victims to claim reparation.

Way Ahead

However, on a positive note, this partial retributive justice, empowered the victims after receiving acknowledgment from the Government, besides it paved the way for the current Cambodian generation to understand their past and gave voice to the victims by allowing them to share their stories. Above all, it helped construct history about the forgotten and erased atrocities done by the Khmer regime from school curriculums and minds of the larger public and finally contributed to the rise of civil society organizations, and helped preserve the crime sites, pressured authorities to construct the museums and library, and in fixing a national commemoration day. All these efforts have helped prevent relapsing into violence to date, thus behind the criticisms, this genuine accomplishment shouldn’t be ignored. It is now important to not let all these efforts go in vain, to not be a passive observer for the marginalization and disempowerment of victims to take place, to not let the society have a faded or distorted version of history. The Memories must be kept alive through all generations, the sites, rituals, ceremonies, must be preserved. Most of all, the victims must be provided with platforms to express their traumatic experience and it must be ensured that the regime doesn’t engage in acts that hurt the sentiments of the victims and the dead must be honored. Thus a culture that respects human rights can help in achieving sustainable peace and reconciliation and gradually reduce the mistrust between the State and the victims and help in healing the past trauma and restore the dignity of the victims. 

Moreover, it must be made clear to the regime that this retributive justice is the only first step to achieve reconciliation. Through the civil society the local reconciliation, documentation of victim’s concerns, and peace-building efforts must be supported. At the same time, it should also be ensured that these efforts get acknowledged at the national level. Further, the underlying causes of the conflict must be studied in detail, and failures from Cambodia should be taken as a reference by Transitional Justice scholars. Most importantly the concentration must shift to root causes through critical ethnographic studies, understanding how the cultural barriers can affect the Transitional justice mechanism and by taking note of the immediate needs of the victims ( the economic, social, and cultural rights), thus gradually helping the victims to integrate into the mainstream society. Failure to do so can make society relapse into violence moreover criticisms will arise against the external actor’s intervention and interest to create a stable market society.

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Southeast Asia

Yoshihide Suga’s Official Trip: What Does He Expect from Vietnam and Indonesia?

Try Ananto Wicaksono

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Prime Minister Yoshihide Suga arriving in Indonesia. Image source: japan.kantei.go.jp

Prime Minister Yoshihide Suga’s certainly understands the political importance of continuity, especially in Southeast Asia. Suga making a first stop in Hanoi, Vietnam and his second visit in Jakarta, Indonesia. Southeast Asian countries as key to pursuing Japan’s “free and open Indo-Pacific,” strategy. There must be other reasons for Suga to visit these two countries, Vietnam is current ASEAN chair, while Indonesia as the only member of the Group of 20 major economies from Southeast Asia. Both of them have important roles to share historical, economic cooperation, and political ties. Are those the only reasons?

Katsunobu Kato, a cabinet secretary Japan, states that Indonesia and Vietnam as the partners to exchange opinions over how to handle the regional and global impeding agendas such cooperation for realizing a fee and open Indo-Pacific strategy, address South China Sea issues and North Korean Situations. hence, there are three keys Suga’s first foreign visit as Japan PM amid Chinese Aggression in South China Sea, Indo-Pacific Partnership and North Korea situation.

As one of the key strategic Japanese objective to expand Indo-Pacific Partnership by implementing an internal balancing that involves efforts to enhance the state’s power by increasing one’s economic resources and military strength in order to be able to rely on independent capabilities in response to a potential hegemon, in this case China, and be able to compete more effectively in the international system. Promoting coordination between partners like Indonesia and Vietnam and helping both countries to strengthen their economic and maritime capabilities to build up resilience in front of Chinese aggression and its influence.

During the pandemic, Japan economy has been hit harder by the crisis than the US or EU that 3.4% fall in growth domestic product (GDP) for the first three months of 2020. Since the Tokyo 2020 Olympic Games will be postponed until next year, due to the COVID-19 pandemic. As a result of this, Japan is set to suffer severe economic blows. Vietnam’s growth potential and low-cost labor supply continue to curry favor among Japanese companies, making Vietnam has been selected by Japanese firms as the most promising place in Asia to invest in 2020with 42.1 percent of the 820 valid responses. Previously, Japan has given ¥200 million in aid to help Vietnam fight the COVID-19 pandemic. On the other hands, Suga pledged low-interest loans of 50 billion yen ($473 million) to Indonesiato overcome with the economic fallout from the coronavirus pandemic. As the symbols of strong friendship ties between Indonesia and Japan, which support each other’s.

Japan also seek stronger security, Vietnam is critical to the balance of power in Asia and Indonesia faced off against China in the Natuna Sea. In order to response the Chinese Aggression in South China Sea, Japan seeks to strengthen ties with countries in the region amid growing tensions between its main security ally the United States and its biggest trading partner China, over trade, security. Japan hailed an agreement in principle to supply Vietnam and Indonesia with military gear and technology to response the China’s assertiveness in the region. China claims some part of Vietnam’s exclusive economic zone as well as the Paracel and Spratly Islands while Indonesia has been angered by Chinese coast guard intrusions into Natuna Islands. In this regard, Suga expect that both of Indonesia and Vietnam will agree to work together over a range of regional issues, including China’s growing maritime presence in South China Sea. Japan wanted to emphasize that the existence of Indonesia and Vietnam was very important in the eyes of Japan. In this context, Indonesia and Vietnam is expected not to rely only on one country, which is China, with its economic and technological strength. Meanwhile, Japan also wants to invite Indonesia and Vietnam to continue developing growth in the Indo Pacific region. Since Indonesia is currently pursuing stronger relations with countries in Africa through the Indonesia-Africa Infrastructure Dialogue. On the other hand, Vietnam has been making great strides in projecting itself as an effective leader, particularly with its proactive governance in handling the COVID-19 pandemic, climate change policy, and for its political stability.

Balancing encompasses the actions that a particular state or group of states take in order to equalize the odds against more powerful states. Prime Minister Yoshihide Suga is thus seeking to build a network and partners in the Indo-Pacific, both to strengthen the current alliance system but also to proactive in defending its own interests. Vietnam and Indonesia were key to pursuing multilateral economic and security cooperation to counter China’s growing power and protect sea lanes in disputed areas of the South China Sea.

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India-ASEAN relations under Vietnam Chairmanship of ASEAN

Prof. Pankaj Jha

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Photo: VGP

India has very recently come out with India-ASEAN Action Plan 2021-2025 alluding to the objectives for furthering its relationship with the ASEAN nations. In the plan it is clearly envisaged that there will be cooperation in the area such as trade, investment, counterterrorism and in developing the edifice related to maritime security. It has been found that under the Vietnam chairmanship there is a need for addressing challenges emerging in the field of pandemics and medical research, so as to protect lives of many individuals across southern Asia. Further, in terms of increasing connectivity between the two sides and reviewing the achievements of the India ASEAN strategic partnership there has been positive movement from both sides.

With the forthcoming India ASEAN summit to be held in near future, it is going to address issues such as maritime corporation, sustainable development, developing marine resources, connectivity in both physical and digital domains, and increasing people to people contact through initiatives such as health, education and tourism. An important aspect of this new action plan is to enhance defence exercises, coordinated patrols, and effective logistics support mechanisms during humanitarian assistance and natural disasters. In fact, one of the major milestones between India and ASEAN strategic partnership has been in the field of humanitarian assistance and disaster relief. In the last few years there has been increasing synergy in the areas such as counterterrorism, cyber security and medical tourism. ASEAN has undertaken new initiatives related to the fourth industrial revolution, and also been looking into developing better cooperation with other countries in areas such as artificial intelligence, machine learning and robotics.

India has been conducting multiple joint exercises, and entered into logistics agreement with countries such as France, Australia, the US, Singapore and Japan. Increasing need has been felt in terms of developing freedom of navigation and commerce in the critical sea lanes of communication as well as promoting no use of force and resolution of long impending maritime disputes through the UNCLOS, and develop mechanisms to address concerns related to ASEAN countries.

It has been acknowledged that India-ASEAN free trade agreement has benefitted economies but there is a need for a review so that new sectors and also free movement of the skilled labour could be promoted. During the review of India-ASEAN relations particularly in the field of trade and strategic partnership, it was found that in terms of meeting of connectivity objectives there has been laggardness in the approach. However, there is a lot of potential with regard to developing ties in digital economy, education, vocational training of labour, and also capacity building in areas such as Small and Medium Enterprises (SMEs).

India’s subscription to the concept of Indo-Pacific and its meetings with the quad members have highlighted the possibility of a superstructure which can be created which will be able to address core concerns with regard to regional security, maritime code of conduct and undertaking concerted efforts so as to bring up accountability and compliance for better peace and development in the region. One of the areas which has been and listed in the India ASEAN action plan is to look for complementarities in areas such as artificial intelligence, machine learning and sharing best practices with regard to the Industrial Revolution 4.0. One of the consultative process which has lost steam over a period of time is the Delhi Dialogue which have become more repetitive in terms of agenda and ideas, and there is scarcity of ideas. However, this regular dialogue process has brought about Track I and Track II consultations involving academics, experts and foreign officials as well as leaders.

With increasing attention of the European Union to this region, and the major European powers have outlined their Indo-Pacific strategy; Southeast Asia, by default, has become epicentre for launching these initiatives. It has become pertinent that India should also explore possibilities of building up resilient supply chains and help in development of the areas along with infrastructure development so that investment and development spin-offs in the region can also benefit India in the long run. It has been found that processes such as ADMM plus which have been discussing the areas of maritime security, counterterrorism has found resonance within India. In the areas such as mine countermeasures and developing humanitarian action plan for the demining there are complementarities which are existent in the relationship.

ASEAN outlook towards Indo Pacific is one of areas which is unexplored, and needs further focus with Asian centrality being the primary goal. ASEAN nations have been working with regard to comprehensive action plan related to counterterrorism and therefore much more focus is required under Vietnam chairmanship to build consensus and institute necessary structures so that the cooperation at the official level can continue in the long run.

India has not developed its counter radicalisation strategy and therefore it is important that ASEAN should share best practices with India. One of the focus areas which has been enlisted in the action plan is related to financial architecture and the cooperation which is required for the development of the capital markets and developing new ways for financial transactions through secure means.

Energy cooperation has been one of the areas which is of importance for both ASEAN nations as well as India but for that to fructify it is important that the both sides should look forward for research in energy efficiency, fuel cell technology and developing electric vehicles so as to curb pollution and reduce dependence on fossil fuels.
Under Vietnam chairmanship sectors such as agriculture, sericulture, floriculture and development of new techniques for enhancing yield have been supported. This also requires a boost to the India-ASEAN science and technology fund which has been created between the two sides. Many of the Southeast Asian countries have been dependent on fisheries and developing aquaculture.

In the areas such as blue economy there is a vast potential and also both sides are keen to explore possibilities. Under the stewardship of Vietnam, it is important that new projects and also ministry level dialogues should be undertaken. India is a developing country and has been taking giant leaps in areas such as strategic technologies, new defence innovations and advanced satellite communications. In the areas of space and cyber the two sides can look forward for developing software and other mobile apps which can reduce dependence on Chinese apps.

India and ASEAN can work jointly in developing the tourism sector particularly identifying the tourist circuits which can boost the economy as well as the hospitality industry. In the post-COVID-19 phase it is important that tourism should be promoted while undertaking safety precautions so that this sector can see a quantum jump. In terms of areas such as climate change and biodiversity, Vietnam can suggest ways to secure carbon sinks and also undertake networking among the institutions which are working in the field of climate change and mitigation.

The India–ASEAN ties need further impetus through better managing of the Green Fund and develop action plan with marine debris and developing biodegradable products. The COVID-19 has opened a new sector of public health and developing generic medicines. While much has work has been done between India and the ASEAN nations but there is need for developing vaccines and creating logistic supply chain so that these vaccines can reach a larger population while transporting them under sub-zero temperatures.

It has been seen that Vietnam has been taking a number of measures related to these aspects even in the very adversarial conditions such as COVID-19 and the agenda and the outcomes have been clearly demarcated in each of the meetings. There is need for addressing these issues during the ASEAN summit meetings with India and also acknowledging the fact that the interest of the two sides have diversified and have huge potential in coming years.

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