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Deciphering EU’s new investment deal with China

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The perceived economic gains of the Comprehensive Agreement on Investments (CAI), which the 27-nation European Union recently struck with the People’s Republic of China, come at the cost of disregarding human rights, which the Western bloc is known for, amid clear and irreconcilable systemic differences.

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The closing days of 2020 saw the European Union and China striking a deal known as the Comprehensive Agreement on Investments (CAI), thereby concluding seven long years of negotiations, as per the year-end deadline. China is also the EU’s biggest trading partner after the United States, but a strategic and systemic rival too.

The European Commission, Brussels-based executive arm of the EU, primarily led the negotiations on behalf of the bloc. Germany, being the holder the EU Council Presidency and led by Chancellor Angela Merkel’s continued push, combined with Beijing’s last-minute concessions, proved instrumental in expediting the process of finalising the CAI before the end of 2020.

However, the deal will still have to wait for a formal ratification by both sides and an approval by the Strasbourg-based EU Parliament, a tougher task, before finally setting it on course to be effective in a couple of years’ time, if not by early 2022.

Better rules, level-playing field for European businesses

The EU, by this deal, aims to widen the access for European companies to lucrative Chinese markets, with billion-plus consumers, on a wide range of sectors, particularly in services such as healthcare, finance, cloud-computing and air travel, among others, that has always been restrictive to foreign players in the past.

The deal could bring in a level playing field in the conduct of European businesses in China wherein Chinese state-owned enterprises will no longer be given preferential treatment through subsidies, thereby promoting fair competition and ensuring transparency in technology transfers. Newer possibilities for the expansion European businesses in China will be opened.

The CAI also promise better rules, investment protection, and an investment dispute settlement mechanism within two years of signing, which will replace all the separate bilateral investment treaties currently signed between China and EU member states. The EU maintains that the main purpose of this new deal is to address the economic imbalance in its relations with China.

However, the most striking aspect of the CAI is that, for the first time, China commits to follow accepted standards on climate and labour aspects, even though in a vague form. And for the EU, the timing of this deal with China is significant as a way of signalling its reengagement with the world in the aftermath of a post-Brexit scenario.

At the same time, the CAI reaffirmed reciprocal access for Chinese companies into European markets, which they always had. So, the deal matters to Europe, more than it matters to China. So, the real question is the extent of compromises which European negotiators had to make to strike the deal with the Asian superpower.

The issue of forced labour in China

Many EU member countries and the US had been apprehensive about the human rights situation in the northern Xinjiang province of China where there have been evidences and investigations on the use of forced labour from the media and elsewhere, which has not been duly factored in while concluding the investment deal.

It has been alleged that in the past several years, the Chinese government has forced over a million Uighur minorities in Xinjiang to perform seasonal labour against their will and are often underpaid. But, the Chinese government has repeatedly denied such allegations.

Many European lawmakers believe that China is not interested in fully complying with international agreements after signing it and is not a responsible and trustable partner. The presence of mass detention camps in this province, as verified by satellite imagery and other documents, is also a human rights concern which the EU was not supposed to ignore, considering its historical commitments to human rights.

US concerns and strategic rivalry

The incoming Biden administration has also raised concerns about the CAI, stating that it would “welcome early consultations” with its European partners on shared concerns surrounding China’s unfair economic practices, hinting at the issue of forced labour and the deal’s lacking on the question of enforcement of human rights.

Being a security and strategic partner of the US and part of the North Atlantic Treaty Organisation (NATO), any such deal which EU and its member countries sign with its strategic rival, China, could effectively undermine American-led efforts to counter the strategic and geopolitical threat posed by Beijing’s aggressive and expansionist policies around the world.

It also flies in the face of an incoming Biden administration which is openly committed to mend relations with allies in Europe that had been worsened under Donald Trump. Many experts in the US have felt the EU should’ve waited for a few more weeks until the Biden administration takes charge to form a co-ordinated approach, as it related to their common systemic and strategic rival, China.

Moreover, the deal comes at a time when individual EU members such as Germany and the Netherlands have recently released their own outlook on the Indo-Pacific strategy, which is perceivably aimed at containing China’s rise and to ensure balance of power in the region. Meanwhile, France’s outlook is in existence for two years now.

Way ahead for implementation

The deal has now been reached at the technical level, paving way for a final ratification. But, getting the deal through the European Parliament, which attaches far more significance to human rights concerns than the Commission and the Council, is going to be a tough task, as many European legislators are increasingly sceptical of Chinese intentions and commitments to any deal.

The coming months are going to be crucial with regard to how the European legislators will debate and take forward the deal to the next level.

Bejoy Sebastian is an independent journalist based in India who regularly writes, tweets, and blogs on issues relating to international affairs and geopolitics, particularly of the Asia-Pacific region. He also has an added interest in documentary photography. Previously, his bylines have appeared in The Diplomat, The Kochi Post, and Delhi Post.

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Russia-EU break possible but unwanted

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Pressures in relations between Russia and the West have recently become so strained that Foreign Minister Sergey Lavrov warned of the possibility of a complete break in ties.

In an interview with Anadolu Agency, Andrey Kortunov, head of the Russian International Affairs Council, a Moscow-based academic and diplomatic think tank established upon a presidential decree, assessed how real the threat is and what consequences it could lead to.

It is necessary to make it clear what “a possible break with the EU” means – whether cutting relations with individual European countries or with European Union structures, said Kortunov.

“If we talk about EU countries, we shouldn’t forget that they now account for more than 40% of Russia’s trade turnover, they are the main source of investments and technologies that go to Russia. No one is ready to give up on this, and no one will,” he said.

As for structures of the EU bloc, in general, a break would be possible, but it would be both unwanted and unwelcomed, he said.

Kortunov noted that cooperation between Russia and the EU shrank in recent years, and a great many of the structures established to build bilateral ties have been closed.

“For example, in the past, we regularly held EU-Russia summits twice a year – in the first half of the year in Russia, in the second half in the EU presiding country or in Brussels,” he explained.

“Now such summits do not take place. The number of working groups that work in specific areas has decreased.”

Following this logic, breaking or freezing the remaining ties is possible but it is an extremely unwanted scenario because it is impossible to have good relations with European countries – EU members – and not have any relations with the EU itself, Kortunov said.

“A number of important issues lay within the competency of the European Union, including but not limited to trade and scientific and technical cooperation,” he said.

He warned: “Sooner or later, our projects with individual countries will run into unresolved issues at the level of the EU bureaucracy. Therefore, in principle – I repeat once again – a break is possible, but it is extremely unwanted because it is fraught with many negative consequences.”

Cooperation in ‘non-toxic’ areas

The EU is interested in cooperation with Russia as well, as it is a big market and important partner, he added.

Russia also plays an important role in the Middle East, and the situation in the region directly affects life in the EU, so cooperation on regional conflicts is another important part of Russian-EU interaction, said Kortunov.

To defuse the situation, he said, both sides have to exercise caution in their rhetoric.

“It’s one thing for members of parliament to say something critical, and quite another for the decision-makers in the executive branch to do that. The latter should exercise as much restraint as possible,” said Kortunov.

Cooperation in “non-toxic” areas, where Russia and the EU can work together despite political differences without making any difficult concessions, would also contribute to building trust, he said.

“And we need an open discussion with the EU about how we see ourselves in the world in five, 10, maybe more years,” he said.

“We need a strategic dialogue, which is not currently being conducted, at least I do not know that it is being conducted. And then we can gradually correct the relationship.”

Foreign Minister Lavrov said last week that the EU had been breaking bilateral mechanisms established under agreements on partnership and cooperation.

Asked if Russia is heading for a breach with the EU, Lavrov said he believed Moscow would be ready for it, and the country has to become fully economically self-sufficient in case sanctions are imposed in a sphere where they could risk the Russian economy.

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Dara of Jasenovac

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The region that we now call Western Balkans does not remember that the realization of a movie caused many reactions and comments as ” Dara of Jasenovac”. The movie deals with the most painful topic in Serbian history – the genocide that Croats and Bosnian Muslims committed against the Serbian people in the so-called Independent State of Croatia, in the Jasenovac concentration camp during World War II.

All Nazi concentration camps after the end of the World War II were preserved to this day, so that the memory of the crimes would not fade. Millions of visitors come to Auschwitz, Dachau and other death camps, and pay their respects to the innocent victims. When in December 2009 from a museum in Auschwitz the “Arbeit macht frei” (work sets you free) sign was stolen, it was a planetary news. The sign was found after less than a month, although broken into three parts, which was again world news.

But few, outside of the Balkans, have heard about the Jasenovac extermination camp in Croatia, which was never liberated, but instead saw roughly 1,000 inmates escape in the hope that at least one of them would live to tell the world about the horrors of being imprisoned by the Croat Nazi-aligned puppet government that was appointed to rule a part of Axis-occupied Yugoslavia.

Israeli professor Gideon Greif, an expert on Auschwitz, researched the history of Jasenovac, which resulted in his book Jasenovac: Auschwitz of the Balkans. The Croat-run Jasenovac extermination camp was the size of about 150 football pitches and was established on April 10, 1941, four days after Nazi Germany invaded the Kingdom of Yugoslavia.

The wartime Independent State of Croatia, or NDH, was a Fascist satellite that was created by Nazi Germany and Hitler’s closest ally, Mussolini’s Italy. Under its leader, Ante Pavelic, the NDH set out to exterminate the Serbs, Jews and Roma who lived in the areas that were under their control – the Jasenovac camp was built to serve this purpose.

What made Jasenovac particularly cruel was the existence of a special camp for children where more than 20,000 Serbian children were brutally murdered. The methods used by the Croat guards to kill and torture the inmates were reportedly so barbaric that even SS chief Heinrich Himmler is believed to have suggested to the Croats that industrial killing, i.e. gas chambers, was a “cleaner way” to liquidate victims so that the guards wouldn’t need to use knives, axes, and other handheld weapons against those that they were sending to their deaths. Menachem Shelah, a historian with the Yad Vashem, the Holocaust museum in Jerusalem, wrote in 1990 that “the crimes committed in Jasenovac are among the most terrible in the entire history of humanity.”

Historians have estimated that between 700,000 to 1,000,000 people were killed at Jasenovac. The Nazis, themselves, recorded up to 750,000 deaths. Since the breakup of Yugoslavia in 1991, the Croatian government has continually insisted that only 83,000 people were killed at Jasenovac. Croatia’s first post-Yugoslav president, Franjo Tudjman, an unabashed nationalist and the man responsible for restoring the Ustase-era flag as the national symbol of Croatia, insisted until his death in December 1999 that a mere 30,000-40,000 people died while imprisoned at Jasenovac.

The total number of deaths that occurred at Jasenovac may never be known as concerted attempts to suppress the extent of the horrors of the camp continue to this day. This, however, is not a new process. Immediately after World War II, Yugoslavia’s Communist leader, Josip Broz Tito, played down the crimes that were committed at Jasenovac as they were seen as a potential threat to the “brotherhood and unity” doctrine of Tito’s Yugoslavia.

“Dara of Jasenovac“ is the first film dedicated to the Nazi Croat camp Jasenovac for mass extermination of Serbs. The decision of the authorities to show the movie “Dara of Jasenovac” simultaneously on the public services of Serbia and Republic of Srpska, as well as on commercial television in Montenegro, was  the right decision in the public interest.

It should be noted that the film Dara from Jasenovac has not only a historical role, but also a geopolitical one. Republic of Srpska has been under pressure since its inception in 1995, with the ultimate goal of abolishing it. There is a whole list of Hollywood films in which Serbs and their struggle in the wars of the 1990s were shown in a negative context. The aim was to show the Serbs as evil and Republic of Srpska as a criminal creation. The ideologues of this theory were the Bosnian Muslim political leaders and the financiers were predominantly Saudi Arabia and Kuwait. That is why “Dara of Jasenovac“ has not only historical and artistic value, but also has a geopolitical one.

`We should continue to make films that will show the suffering of the Serbian people throughout history. I think that we will adopt it, not only as a program act, but also as a program of the Government of Republic of Srpska, to treat Serbian victims in the Independent State of Croatia in the right way“, said Serbian member and chairman of the BiH Presidency Milorad Dodik, after the premiere of “Dara of Jasenovac“.  This statement shows that the leading Serbian politician in Bosnia and Herzegovina has strategic thinking, and that is to be commended. All that remains is, that Milorad Dodik should be supported in this plan by other Serbian institutions and especially by the state of Serbia.

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Council of Europe fights for your Right to Know, too

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Authors: Eugene Matos de Lara and Audrey Beaulieu

“People have the right to know what those in power are doing” -Dunja Mijatovic Council of Europe, Commissioner for Human Rights.

Access to information legislation was first seen in 1766 in Sweden, with parliamentary interest to access information held by the King. Finland in 1951, the United States in 1966, and Norwayin 1970 also adopted similar legislation. Today there are 98 states with access laws; of these, more than 50 incorporated in their constitution. The Inter-American Court of Human Rights 2006 and the European Court of Human Rights 2009 both ruled that access to information is a human right, confirmed in July 2011 by the United Nations Human Rights Committee, a sine qua non of 21st-century democracy.

Global civil society movements have been promoting transparency, with activists and journalists reporting daily on successes in obtaining information and denouncing obstacles and frustrations in the implementation of this right. To this end, the Council of Europe was inspired by pluralistic and democratic ideals for greater European unity, adopted the Council of Europe Convention on Access to Official Documents recognising a general right of access to official documents held by public authorities. It brings a minimum standard for the fair processing of requests for access to official documents with the obligation for member states to secure independent review for restricted documents unless with held if the protection of the documents is considered legitimate.

The right to freedom of information

Access to information is a government scrutiny tool. Without it, human rights violations, corruption cases, and anti-democratic practices would never be uncovered. Besides exposing demerits, the policy is also known to improve the quality of public debates while increasing participation in the decision making process. Indeed, transparency of authorities should be regarded as a fundamental precondition for the enjoyment of fundamental rights, as guaranteed by Article 10 of the European Convention on Human Rights. The policy equips citizens and NGOs with the necessary tool to counter refusal from authorities to provide information. The European Court of Human Rights recognized that withheld documents could be accessed in specific circumstances. In principle, all information should be available, and those upheld can also be accessed, particularly when access to that particular information is crucial for the individual or group to exercise their freedoms unless of course, the information is of national security or of private nature.

Access to information in times of crisis a first line weapon against fake news

The COVID pandemic has enabled us to test access policies and benchmark the effectiveness of the right to know during trivial times, as Dunja Mijatovic mentioned. In fact, having easy access to reliable information protects the population from being misled and misinformed, a first-line weapon dismantling popular fake news and conspiracies. Instead, during COVID, access to information has supported citizens in responding adequately to the crisis. Ultimately, transparency is also a trust-building exercise.

Corruption and environmental issues

Information is a weapon against corruption. The Council of Europe Group of States against Corruption (GRECO) is looking at the specific issue of access to official documents in the context of its Fifth Evaluation Round, which focuses on preventing corruption and promoting integrity in central governments and law enforcement agencies. In about a third of the reports published so far, GRECO has recommended the state to improve access to official documents. In regards to the environment, the United Nations Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, commonly referred to as the Aarhus Convention, expands the right of access to information on environmental matters thus complementing the Tromsø Convention. Declaring these policies as the primary tools that empower citizens and defenders to protect the environment we live in.

Good models exist

Most Council of Europe member states have adequate mechanisms regarding the right to information. For example, in Estonia, “the Public Information Act provides for broad disclosure of public information” states Mijatovic. Moreover, “in Croatia, Serbia, Slovenia and several other countries there is an independent oversight body – such as an Information Commissioner – responsible for monitoring and enforcing the right to information, while some other countries entrust Parliamentary Ombudsmen with supervision of the right of access to information”. Finally, “the constitutions of several European countries do indeed guarantee the fundamental right to information.” Nonetheless, there are still in consistent levels of transparency among state institutions or a failure to meet the requirement for proactive disclosure. The entry into force of the Tromso Convention willbe an opportunity to bring back to the table the importance of the right to information and to read just European States practices regarding the enhancement.

Barriers and Challenges

Digitization is still recent, and authorities are not accustomed to dealing openly. There is a sentiment of reservation and caution. Before the advent of the internet, governments enjoyed a level of political efficiency and practical obscurity. Viewing public records required the time and effort of a visit to the records’ physical location and prevented easy access to details of individual files. Openness has made the policy cycle longer, with a more thorough consultation process and debates. The availability of digital documents has caused an unavoidable conflict.

One of the conflicts is a privacy protection and policy safeguards invoked against freedom of information requests. Requirements to provide transparency of activities must be mitigated with national security, individuals’ safety, corporate interests, and citizens’ right to privacy. Finding the right balance is essential to understand how local governments manage the dichotomy between providing open access to their records by maintaining the public’s privacy rights.

Several governments think twice before pursuing transparency policies. Access to information hasn’t been a priority for some of the European States. Mijatovic reported that “filtering of information and delays in responses to freedom of information requests have been observed in several member states”. Although there is a growth in these laws’ popularity, we are always a step behind meeting the supply and demand of information objectives in an era of digitization.

Legal perspectives

Tromso Convention has only been ratified by eleven countries, which are mostly located in Scandinavia (Finland, Norway and Sweden) or in Eastern Europe (Bosnia, Estonia, Hungary, Lithuania, Moldavia and Ukraine). Reading this statement, three questions should come to our minds:

1.    Why not all European states have ratified Tromso Convention?

2.    Why do Scandinavian countries have chosen to ratify the Convention?

3.    Why are most of the Member States from Eastern Europe?

Regarding the first question, the answer resides in the fact that the ones who haven’t taken part in the Convention already have strong national laws protecting freedom of information and don’t need to bother with extra protection and external surveillance. For instance, Germany passed a law in 2005, promoting the unconditional right to access information. Many other European states such as Belgium, Croatia, Denmark, France &Poland have similar national law.

Regarding the second question, considering that all Scandinavian countries already have national laws assessing freedom of information, the most likely reason behind their ratification would be symbolic support to the cause or because the Convention’s framework is less restrictive than their national laws.

Finally, concerning the last question, we could suppose that most Eastern countries have an interest in demonstrating themselves as more transparent, more following the rule of law. For example, if we examine Montenegro’s case, we could assume that taking part in the Tromso Convention is a step closer to their accession to the EU in 2025.

As for the reservations that have been made, only Finland, Norway and Sweden have made some noticeable. Regarding Norway, the country declared that “communication with the reigning Family and its Household” will remain private in accordance with Article 3,paragraph 1 of the Convention. This limitation covers something interesting, considering that, as mentioned earlier, access to the data type of legislation was first adopted in order to get access to information held by the King. In parallel, Finland declared that “the provisions of Article 8 of the Convention concerning the review procedure [will] not apply to a decision made by the President of the Republic in response to a request for access to a document. Article 8 provides protection against arbitrary decisions and allows members of the population to assert their right to information. Sweden has made a similarreservation on Article 8 paragraph 1 regarding “decisions taken by the Government, ministers and the Parliamentary Ombudsmen”.

Thoughts towards better implementation

For smoother data access implementation, governments can act on transparency without waiting for legislation through internal bureaucratic policy. These voluntary provisions for openness can be an exercise towards a more organic cultural transformation.

Lengthy debates on open access are entertained by exceptions to access. To be sure, governments have enough legal and political tools to withhold information, regardless of how exemptions have been drafted. Instead, a more productive and efficient process is possible if we concentrate on positive implementation and enforcement, including the procedures for challenges on legal exemptions.

The implementation phase of access laws is challenging due to a lack of leadership motivation, inadequate support for those implementing these requests, especially since they require a long term social and political commitment. To do so, an overall dedication and government bureaucratic cultural shift should take place. Although the implementation of access to information should be included internally in all departments, considering a standardized centralized approach to lead the new regime with authority could send an important message. Record keeping and archiving should be updated to respond to requests with improved information management systems. As such, the goal would be to make a plethora of information immediately and unconditionally available.

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