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The 2020 ˋBattleˊ of Diplomatic Notes Opens the Door to a Possible Solution for the South China Sea Disputes

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Exactly one year ago [December 12, 2019], the government of Malaysia submitted part of its continental shelf claim in the South China Sea to an international commission, pursuant to its rights as a coastal state under international law.  Over the past year, that submission has led to a flurry of 25 diplomatic notes exchanged by 10 sovereign states.  These states have included claimants (i.e., China, Indonesia, Malaysia, Philippines, and Vietnam) and non-claimants (i.e., Australia, France, Germany, United Kingdom and United States).  Together, they represent four of the five permanent members of the U.N. Security Council, three non-permanent members of the Security Council, three of the four largest economies of the world, seven of the 20 largest economies of the world, and four of the 10 most powerful navies in the world.  A global spotlight is now shining on this international situation.

Some observers have colorfully described this 2020 exchange of diplomatic notes as a “battle,” but this development has been positive in a several ways.  First, this behavior among states is peaceful in nature.  Diplomats exchanging letters is better than soldiers and sailorsexchanging bullets.  Second, these notes are official in nature.  This helps reduce confusion as to whether a speaker or publication is representing a government’s actual position.  Third, these diplomatic notes provide some transparency, as they have been shared with the world and are now a matter of public record.  Thus, states can identify where they share common ground on their national perspectives. 

Unfortunately, this exchange of notes also shows that it will be impossible for the smaller claimant states to resolve their disputes with China solely through negotiations. Contemporary negotiating theory says that parties to a negotiation can “get to yes” and reach an agreement only if there is a zone of possible agreement (or “ZOPA”) of options that are acceptable to all of the parties.  Given China’s refusal to abandon its invalidated nine-dash line claim that overlaps with the legitimate maritime zones of every other claimant state, there is no ZOPA among the claimant states.  Is there anything that Hanoi, Jakarta, Kuala Lumpur, or Manila could say across a negotiating table to Beijing that would convince them that their claims are superior?  Is there anything that Beijing could say to those capitals that would convince them that China’s claims are superior?  If the answer to both of these questions is No, then the reality is that these claimants will never be able to “get to yes” and resolve these disputes with China solely at a negotiating table.

Fortunately, however,the 2020 exchange of diplomatic notes has opened the door to a potential solution for the South China Sea disputes.  The commonalities in some of these diplomatic notes suggest that the smaller claimant states could collectively develop and pursue an alternative way to resolve the South China Sea disputes peacefully.  This approach which would involve a combination of more diplomatic notes, followed by the use of a bargaining table, and concluding in an international courtroom.

First, the smaller claimant states could coalesce around a consensus position.  More specifically, the governments of Indonesia, Malaysia, Philippines, and Vietnam could each issue a diplomatic note with an attached joint statement.  Their collective declaration in this joint statement could include the following four elements:

(1) China’s nine-dash line and “historic rights” are invalid as maritime claims;

(2) None of the geographic features in the South China Sea is entitled to a 200 nautical mile exclusive economic zone (EEZ);

(3) No naturally-submerged feature or stand-alone low-tide elevation in the South China Sea may be upgraded by reclamation activities to an island entitled to a territorial sea; and

(4) Only archipelagic states may lawfully draw straight baselines around a group of off-shore islands. 

Each of these elements of the joint statement is not far-fetched, but rather has already been expressed in one or more of the diplomatic notes unilaterally tendered by one or more of these four states in 2020.  Through this consolidated position, these smaller claimant states could find bargaining power in numbers.

Second, these four smaller claimant states could then collectively propose the following way-ahead to China for resolving the South China Sea disputes:

(1) Each claimant state surrounding the South China Sea could draw a 200 nautical mile belt of EEZ from its mainland coast;

(2) For each area where two coastal states would have overlapping belts of EEZ, those two states could adopt “provisional arrangements” (i.e., temporary measures) until the boundary dispute is resolved, under which both states may exploit natural resources in the overlapping areaand both states may enforce their national laws to police resource-related activities by third parties;

(3) States could draw a 12 mile “enclave” around each naturally-formed high-tide elevation in the South China Sea.  For those located within 200 miles of a claimant state’s coastline and currently unoccupied, the coastal state could administer that enclave as a provisional arrangement as part of its EEZ.  For those located within 200 miles of a claimant state’s coastline and currently occupied by another claimant state, the occupying state could administer that enclave as a provisional arrangement.

(4) All of the coastal states surrounding the South China Sea could expressly consent to submit all remaining legal issuesto the International Court of Justice (ICJ) as a multi-party, consolidated case.  Gradually, the ICJ could then determine feature-by-feature who has sovereignty of each of the high-tide elevations and its surrounding territorial sea, and also delineate “equitable solutions” for the maritime boundary in areas of overlapping EEZs between mainland coastlines.

This proposed way-ahead would fully comport with all applicable international law. Additionally, it would be the most equitable solution for all of the claimant states.  Each state would have a maximized EEZ along its mainland coast, where it could predictably enjoy and enforceitssovereign rights for fishing and exploiting other natural resources. Collectively, it would achieve a peaceful resolution to all of these territorial and maritime disputes in the South China Sea and enhance regional security and stability, which would benefit claimant states and non-claimant states.

The substantive elements of this potential solution are easy to understand.  The difficulty lies in the governments of the claimant states demonstrating the political will to pursue it.  Admittedly, this way-ahead would take years to complete.  But to paraphrase an ancient proverb in the region, the resolution of a thousand disputes could begin with a single diplomatic step.

The views expressed are those of the author and do not necessarily represent the views of the U.S. Department of Defense or its components.

Jonathan G. Odom is a judge advocate (licensed attorney) in the U.S. Navy. Currently, he serves as a Military Professor of International Law at the George C. Marshall European Center for Security Studies, located in Garmisch-Partenkirchen, Germany. Previously, he has served as the oceans policy adviser in the Office of the U.S. Secretary of Defense and as a Military Professor of law and Maritime Security at the Daniel K. Inouye Asia-Pacific Center for Security Studies. The views expressed are his own and do not necessarily reflect the positions of the U.S. Government, the U.S. Department of Defense or any of its components. He may be contacted at jonathan.odom[at]usa.com

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Southeast Asia

Cambodian Prime Minister’s Visit to Myanmar: Weakening Role of the ASEAN?

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Image source: Wikipedia

Cambodian Prime Minister Hun Sen recently visited Myanmar for two days despite a wave of condemnation that his visit undermines ASEAN and legitimizes Myanmar’s deadly regime. Hun Sen is currently the chair of Association of Southeast Asian Nations (ASEAN) in 2022, and is expected to lead ASEAN in diplomatic activity on how to navigate Myanmar’s political situation. As expected, Hun Sen was welcomed by the Myanmar officials, including Foreign Minister Wunna Maung Lwin, and was given a guard of honor. Accompanying Hun Sen are donations of medical equipment to fight Covid-19, comprising three million face masks, 200,000 N95 masks, 100,000 goggles, 30,000 personal protective equipment (PPE) suits, 30,000 face shields, 3,000 plastic boots, 50 ventilators appropriate for an ICU setting, 50 patient monitors and 50 oxygen concentrators. He was the first foreign leader to visit the country since the Myanmar military overthrew the democratically elected party and jailed it’s leaders, including Aung San Suu Kyi. Since Feb 1, at least 1,435 people have been killed by the Tatmadaw in ruthless crackdowns on democracy protests. Conflict has also escalated in the nation’s border zones creating a humanitarian disaster where tens of thousands of people have been fleeing for their lives. Prompted by Myanmar’s exclusion from the bloc’s summit in 2021, the premier has repeatedly signaled his intent to bring the country back into the ASEAN fold, arguing that the economic union was “incomplete”.

Why has the Cambodian Prime Minister visited Myanmar, a nearly pariah nation in the world? Traditionally, Cambodia is a time-tested ally of Myanmar. This country has remained behind Myanmar solidly in times of crisis and challenges. Particularly, the current Hun Sen leadership is close to the military Junta of Myanmar. Cambodia has a different view about Myanmar and it’s a deeply pro-Junta as Hun Sen believes that ASEAN did not operate very smoothly in 2021 on the Myanmar issue. As the ASEAN chair, Hun Sen is determined to find a way to halt the violence and maintain the “ceasefire” in Myanmar while pursuing the bloc’s five-point consensus and bringing in humanitarian assistance. In his words, we cannot stand by passively while Myanmar falls apart and that we must find a way to resolve the stand-off between the opposing sides there and take advantage of all opportunities to pursue negotiations.

Although apparently the Cambodian leader focuses on political crisis in Myanmar, he has no concern for democracy, human rights and brutality of the military regime. He has no concern for the Rohingyas or any minority groups, which suits interests of Myanmar regime and its allies. Cambodia has launched a diplomatic blitz to rehabilitate the Junta first in ASEAN and then at the global level. Before taking over the revolving annual chairmanship of ASEAN, Hun Sen declared that he wanted the Burmese junta to be represented at the bloc’s meeting. In responding to questions of whether Cambodia can resolve the issue of the Myanmar junta, Hun Sen mentioned that any resolution would have to come from Myanmar itself, saying that the regional bloc was only one part of helping the member nation find a solution. “It isn’t based on whether Cambodia can resolve it or not, but Cambodia will try to compromise the situation of Myanmar to return it to a better situation.

Hun Sen is trying to use his personal influence as one of the oldest leaders in the region who is in power for more than 36 years and who even supported Vietnam’s invasion of his country in 1978. His own leadership in Cambodia is also deeply criticized, so his diplomatic role can also help him legitimizing his power in one of the small but historic nations on earth, Cambodia. Hun Sen often refers to ASEAN’s long-held convention of not interfering in each other’s internal affairs as an excuse of not creating any pressure on the Junta government. He plainly promotes the idea that under the ASEAN charter, no one has the rights to expel another member.

Support for the Hun Sen Initiative

The visit of Hun Sen enjoys support from some members of ASEAN and outside. Cambodia enjoys strong endorsement from two powerful regional partners of ASEAN and members of ASEAN Plus Three, China and Japan. In a statement of Japan’s MOFA, it is stated that Japan welcomes Cambodia’s active engagement as ASEAN Chair on the situation in Myanmar, and both ministers shared the view to coordinate closely. Another close ally of Myanmar, China, is also strongly in favor of Hun Sen and Cambodia, as well as Myanmar. The Chinese foreign ministry official, Wang Wenbin states that China appreciates Myanmar’s readiness to create favorable conditions for ASEAN’s special envoy to fulfill his duty and [he] works toward effective alignment between Myanmar’s five-point road map and ASEAN’s five-point consensus. In his words, “China will fully support Cambodia, the rotating chair of ASEAN, in playing an active role and making [an] important contribution to properly managing the differences among parties of Myanmar”. Members of ASEAN such as Thailand and Vietnam have strong support for Hun Sen visit. Cambodian Foreign Minister Prak Sokhonn said that ASEAN member-state Thailand’s top diplomat had sent a “congratulatory message” saying, “he strongly supported the outcomes of the Cambodia-Myanmar joint press release”.

Against the Visit

Rights groups are calling the visit a charade. They openly argue that by failing to insist that he would meet with all parties to the conflict, including imprisoned political leaders like Aung San Suu Kyi, PM Hun Sen has demonstrated a clear authoritarian orientation that all issues can be sorted out in closed door talks between dictators. They argue that such kind stance of Hun Sen threatens to undermine the very fragile ASEAN decision that Myanmar political authorities cannot participate in future ASEAN events unless they abide by the 5 Point Consensus agreed by junta supremo General Min Aung Hlaing in April 2021. Activists also argue that with the false confidence generated by this ill-advised visit, the serious worry is the Tatmadaw will see this as a green light to double down on its rights abusing tactics seeking to quell the aspirations of the Burmese people. The worrying fact is that ASEAN has been making some efforts to stabilise the political conflict in Myanmar since the 2021 coup, but many view Hun Sen’s visit undermines this progress. Understandably, anti-coup activists and leading members of Myanmar’s shadow government, the National Unity Government, have also condemned the visit across social media. The most outspoken ASEAN members against the visit are Indonesia and Malaysia who led the process in 2021 to keep the Junta leader, General Min Aung Hlaing out of ASEAN process for his blatant breach of 5-point consensus to which he was also a party.

Who has benefited from the Visit?

Undoubtedly, it is the military Junta of Myanmar who has gained exclusively from this visit orchestrated by the pro-Junta members within and outside of ASEAN. Myanmar and Cambodia are particularly happy with the outcomes of the visit. In the first place, the Myanmar Military has already achieved a huge diplomatic advantage from the visit of Hun Sen as he became the first foreign leader to visit Myanmar and meet the regime’s leader, Min Aung Hlaing, since the military overthrew the country’s elected government in February 2021. Meanwhile, the two leaders discussed bilateral relations in a 140-minute meeting in the capital of Naypyidaw and they agreed that the ASEAN Special Envoy could be involved in the Myanmar peace process. Myanmar believes that Cambodia will rule with fairness during its chairmanship this year of the ASEAN. To Myanmar, there were “good results” from the Cambodian leader’s visit that boosted the military leadership as they argue that international pressure on Myanmar had not dialed down, but Myanmar would not bow to it.

Despite the satisfaction of Myanmar and Cambodia, Malaysian Foreign Minister Saifuddin Abdullah criticized Cambodia’s Prime Minister Hun Sen for taking unilateral action in meeting the leader of Myanmar’s junta. The foreign minister further added, “We would expect that he could have at least consult – if not all – a few of his brother leaders as to what he should say.” He reminded that ASEAN position would not change that until there is clear progress on the five-point consensus Myanmar’s representation at the Asean summit and related summits at the end of the year should remain non-political. Indonesia is another powerful member of ASEAN also criticized that visit and identified it as a futile exercise.  

Another immediate outcome of the visit is postponement of the first ASEAN meeting known as The ASEAN Foreign Ministers Retreat (AMM Retreat) initially scheduled on Jan. 18-19, 2022, in Siem Reap province under Cambodia’s 2022 chairmanship. Although COVID 19 was shown as a reason behind this decision, it is the division among the bloc’s members over Prime Minister Hun Sen’s visit to Myanmar has played a vital role behind this new development. Discords within ASEAN over Hun Sen’s trip to Naypyidaw and a potential invitation to the Myanmar junta’s foreign minister to attend the ASEAN diplomats’ retreat might be why some ASEAN members chose not to attend the meeting. Precisely, the issue is members’ intense disagreement over ASEAN chair’s invitation to the Myanmar military-appointed Foreign Minister Wunna Maung Lwin have created an impasse. It may be mentioned that Brunei, Indonesia, Malaysia, the Philippines and Singapore had backed shutting out the coup leader from the regional bloc’s top summit in 2021 when Brunei was the Chair of the bloc.  Analysts fear that the postponement effectively delays the official endorsement of Foreign Minister Prak Sokhonn as ASEAN’s new special envoy for Myanmar.

By visiting Myanmar and meeting with Min Aung Hlaing, Hun Sen legitimized him and at the same time, weakened the role of ASEAN in playing a constructive role in the Myanmar crisis. The military leader in Myanmar had promised, among other things, to end violence and give an ASEAN special envoy access to all parties in the Myanmar political crisis, but he has done none of those things. Hun Sen has reversed the stance of the previous Chair Brunei, which created positive pressure on the Myanmar regime. Now the visit has questioned the credibility and limit of ASEAN to continue its meaningful and effective diplomatic role in mitigating the crisis in Myanmar, which has adverse impact on the future of democratic movement and the possible repatriation of the Rohingyas.

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Laos Prime Minister visit to Vietnam

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Lao Prime Minister Phankham Viphavanh (front, centre) arrives at Noi Bai International Airport in Hanoi on January 8 morning (Photo: VNA)

Laos Prime Minister Phankham Viphavanh along with a high-ranking delegation visited Vietnam from January 8 -10 to strengthen ties with its neighbour country. The official visit of Laos Prime Minister to Vietnam ushered in a new phase of interactions and outlook in friendship between the two neighbourly countries of Indochina. The Laotian prime minister would also usher in the era long celebration of the friendship between Laos and Vietnam in the year 2022. Given the fact that the two countries of Indochina have suffered the after effects of the pandemic COVID-19 in the year 2021, and have decided to enhance their partnership in select areas for protecting the mutual interest and forging cooperation between the parties, the government and developing people to people interactions. Vietnam has taken cognisance of the fact that the neighbouring countries require support both in terms of medicines, diagnostics and other health equipment which was required during the times of crisis.

Vietnam had given medical equipment and diagnostics kits  worth US$2.2 million to Laos, and also sent a few of its medical personal to assist the Laotian patients and Vietnamese  overseas citizens in Laos. At the times of crisis, even Laos has given Vietnam nearly US$300,000 for pandemic containment response and even the private sector in Laos came forward for giving 1.4 billion dollars  to the Vietnamese communities located closer to the  border of the two countries.  Between Laos and  Vietnam there has been economic and development cooperation  under that there are more than 209 projects under which Vietnamese firms  have invested more than $5.16 billion in Laos.

In terms of education, training and developing capacities the two countries have assisted each other and Vietnam has offered more than 1200 scholarships to Laotian  officials and students for enhancing their knowledge and capacities.

Since last year the interaction between the two countries has been more profound and there has been a visit of party general secretary, presidents, and prime ministers of the two countries. In August 2021 Laos general secretary and president Thongloun Sisoulith paid an official visit to Vietnam. During the visit the discussions were held with regard to improving ties and elevating ties to the next level. One of the important agenda points which have been discussed was bringing about reforms and ensuring national construction and defence between the two countries. The party general secretary appreciated the extensive reforms which have been carried out in Vietnam in the last three and a half decades after Doi-Moi(economic reforms programme initiated in 1986). The two sides also discussed developing conducive conditions for mutual development and ensuring stability and prosperity in Southeast Asia. The issue of development in Mekong subregion and developing interactions at World Trade organizations were in the agenda too. One of the important highlights of the visit was strengthening cooperation and coordination with Cambodia so as to promote the CLV developmental triangle area. Laos and Vietnam also share the resources of Mekong River and it has become imperative for the two countries to develop institutional links and coordination mechanisms in this context. The two sides were also keen on developing defence ties and addressing challenges such as cross border crime an undertaking joint border patrol.

Following this visit, President Phuc visited Laos in his new term and the discussions were held between the two counterparts on COVID-19 pandemic cooperation and undertaking special efforts particularly in regional organisations as well as in the United Nations. During that visit nearly 14 cooperation documents were signed between the two ministries particularly in the fields of security, defence, drugs control, power exchange, and mineral exploration. The visit also opened new vistas of cooperation between the two sides and but trust the need for special solidarity and comprehensive cooperation. During the visit the 43rd meeting of the Vietnam Laos intergovernmental committee was also held and the two sides also decided on the cooperation strategy for the next decade (2021 to 2030). In fact, one of the important highlights of the visit of president Phuc has been the wide coverage which has been given by the media in Laos and also highlighting the special friendship between the two nations.

This visit of the Laos Prime Minister forms the basis of solidarity, political acknowledgement, and confidence between the two parties in the Indochina. Vietnam has also helped Laos in building its National Assembly which was worth 111 million USD dollars. Vietnam showed urgency and immediate support when Laos was facing widespread effects of COVID-19 pandemic. In one of the statements which was made by the Ambassador of Laos in Vietnam, he stated that this visit will build up foundation for a comprehensive partnership between the two nations in the year 2022. He added that this visit will help in deepening ties related to science and technology, culture, education, knowledge building security and defence ties as well as political interactions. The two countries have convergence is with regard to developing the age end of ASEAN meetings in the year 2022 as well as looking for better development avenues in the Mekong subregion. The Vietnam Laos friendship and solidarity year 2022 would help in better management of trade relationship, use of Vietnamese sea ports by Laotian businessman and exploring transport connections through the East West corridor.

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Vietnam’s contributions as non-permanent member of UNSC

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Vietnam has joined the UN Security Council as a non-permanent member for the period 2020–2021 and during this period it was expected that Vietnam would be raising issues related to the regional development, challenges with regard to the pandemic, building consensus on sustainable development goals, and addressing issues related to maritime and regional security. In one of the statements which have been made by the permanent representative of Vietnam to the United Nations, he has clearly stated that Vietnam has been able to secure cooperation from the other members of the UNSC on issues related to objectivity, unity and transparency, and made a good case with regard to the legitimate interest of relevant parties in South China Sea. Vietnam has aspired to make the United Nations as a people centric approach and stressed on finding reasonable and sustainable solutions to settle maritime disputes through dialogue, and highlighted humanitarian challenges to the most vulnerable groups in the international society. Vietnam strongly supported the UN Charter in the maintenance of international peace and security. It was also very vocal with regard to protection of infrastructure which was critical to people’s livelihood.

In one of the messages which was sent by President of Vietnam Phuc following the conclusion of Vietnam’s term as non-permanent member of UNSC, it is stated that in the New Year Vietnam completed the term fulfilling the trust that was bestowed upon it by the international community when it got 192 out of and 193 votes for securing a non-permanent seat in the UNSC. He stated that Vietnam has always stressed on maintaining international peace and security and also urged the nations for building up consensus with regard to the pandemic and after effects caused by COVID-19.

Vietnam during the meeting on maritime security (held in August under the UNSC chairmanship of India) also suggested three important measures which included involvement of international organisations in regional conflict zones, undertaking consultative measures through dialogue mechanisms and also stressing on people centric approach so as to protect communities living in the coastal zones. Vietnam’s President Phuc also stated that the UN Charter and international law should be protected at all times. During the two-year stint with the UNSC, Vietnam projected its foreign policy in terms of self-reliance, promoting peace and friendship among nations, strengthening multilateral structures, and expanding its relations with other countries of the world. In his message he also stated that Vietnam has now become a more active and responsible stakeholder in international dialogue and would be taking responsibilities which would strengthen institutions such as UN.

Vietnam is also aspiring to become a strong and prosperous middle power country by the year 2045 when Vietnam will be celebrating hundred years of its independence. The adroitness of the Vietnam’s diplomatic community and the party cadres have helped in elevation of Vietnam’s international stature and enhance ties with a number of countries representing in the UN. Vietnam steadfastly advocated for a world free from wars and conflict, and developing common objective of international peace along with removing poverty and inequalities.

During its stint as the chair of the UNSC in April 2021, Vietnam demonstrated a strong affinity to the international community and highlighted the issues which are of common concern for the mankind. Vietnam also highlighted the need for strengthening dialogue between the UN and regional organisations, and addressed one of the important issues of unexploded landmines and after effects of explosive remnants of the world wars.

Vietnam made a strong case for respect and recognition for international law and implementation of the charter enshrined under UNCLOS 1982. In fact, Vietnam also raise the issue of woman in peace and conflicts aspects and   the collateral damage of the climate change in conflict zones. During the chairmanship of Vietnam, the pandemic effect became profound and, in that context, Vietnam showed diplomatic skilfulness in promoting international peace and security due to the pandemic conditions. Vietnam, during its stint as the chair of the ASEAN in 2020, has already explored the possibilities with regard to holding online and off-line activities and therefore its experience came very handy in UNSC to explore potential of online and off-line activities together.

Vietnam raised very pertinent questions with regard to the protection of civilians and critical civilian infrastructure in crises zones. One of the important achievements which was enshrined in Vietnam’s tenure was the adoption of the International Day of Epidemic Preparedness. This was fully supported by all UN member states and the resolution was adopted worldwide. This International Day of Epidemic Preparedness was meant to prepare all organisations including private and public sector to address any gaps in preparedness and coordination as well as creating awareness among people.

Among the list of priorities which have been issued by the Vietnam for the year 2020-2021 tenure was primarily focused on peaceful settlement of disputes, strengthening of implementation of Chapter VI of the UN Charter, addressing the after effects of armed conflict, cooperation under the United Nations Peacekeeping Forces, and highlighting tangible solutions in mitigating the effects of climate change which are related to international peace and security. All in all, one can say that Vietnam has very deftly managed its position as non- permanent member at UNSC, and has also supported countries like India in addressing issues such as maritime security at the global level. This has generated lot of interest and international support which was instrumental in adopting common protocols and future agenda for protecting the global commons.  

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