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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.

International private Law specialist of the University of Ottawa. He is the former publisher of the academic journal Border Crossing.

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Victor Orban’s eyes may be bigger than his stomach

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When Prime Minister Victor Orban recently spelled out his vision of Hungary’s frontiers, he joined a club of expansionist leaders such as Russia’s Vladimir Putin, China’s Xi Jinping, and members of the Indian power elite who define their countries’ borders in civilisational rather than national terms.

Speaking on Romanian territory in the predominantly ethnic Hungarian town of Baile Tusnad in Transylvania, a onetime Austro-Hungarian possession home to a Hungarian minority, Mr. Orban echoed the worldviews of Messrs. Xi and Putin.

Those views are on display in the South China Sea and Ukraine, as well as in statements by the Russian leader about other former Soviet republics.

It’s a worldview also embraced by members of India’s Hindu nationalist elite that endorses a country’s right to expand its internationally recognized borders to lands inhabited by their ethnic kin or territories and waters that historically were theirs.

Unlike the Russian and Chinese leaders, Indian Prime Minister Narendra Modi has been careful to avoid public support for the civilisationalist concept of Akhand Bharat embraced by his ideological alma mater.

The concept envisions an India that stretches from Afghanistan to Myanmar and encompasses nuclear-armed Pakistan, Bangladesh, Nepal, Bhutan, Sri Lanka, and the Maldives.

Mr. Modi’s silence hasn’t prevented Mohan Bhagwat, head of the powerful ultra-Hindu nationalist Rashtriya Swayamsevak Sang (RSS) or National Volunteer Organization, from recently predicting that Akhand Bharat would become a reality within 15 years.

Mr. Modi has been a member of the RSS since the late 1960s. However, he is believed to have last referred to the Akhand Bharat concept in an interview in 2012 when, as Chief Minister of Gujarat, he suggested that “Hindustan, Pakistan, and Bangladesh should rejoin.”

However, in contrast to his more recent silence, Mr. Modi has approached Indian Muslims, the world’s largest minority and its largest Muslim minority, in much the same way that Mr. Orban envisions a racially and religiously pure Hungary.

The Hungarian prime minister sparked outrage in his July speech when he rejected a “mixed-race world” defined as a world “in which European peoples are mixed together with those arriving from outside Europe.”

Mr. Orban asserted that mixed-race countries “are no longer nations: They are nothing more than conglomerations of peoples” and are no longer part of what he sees as “the Western world.” Mr. Orban stopped short of identifying those countries, but the United States and Australia would fit the bill. 

Romanians may be more concerned about Mr. Orban’s racial remarks than his territorial ambitions, described by one Romanian Orban watcher as a “little man having pipe dreams.”

Romanians may be right. Mr. Orban’s ability to militarily assert his claims is far more restricted than those of his Russian and Chinese counterparts. Nevertheless, one underestimates at one’s peril.

Mr. Orban shares Mr. Putin and Mr. Xi’s resentment of perceived historical wrongs that need to be rectified irrespective of international law and the consequences of a world whose guardrails are dictated by might rather than the rule of law.

His speech seems to promise to reverse what he sees as an unjust diktat. His revanchism may explain why Russia’s alteration in Ukraine of national boundaries by force doesn’t trouble him.

Mr. Orban left no doubt that his definition of the Hungarian motherland included Transylvania and other regions in the Carpathian Basin beyond Hungary’s borders that ethnic Hungarians populate.

Insisting that the world owed Hungary, which eventually would call in its debt, Mr. Orban asserted that his country was driven by the notion “that more has been taken from us than given to us, that we have submitted invoices that are still unpaid… This is our strongest ambition.”

Mr. Orban implicitly suggested a revision or cancellation of the 1920 Treaty of Trianon, which deprived Hungary of much of its pre-World War I territory.

Two months earlier, Hungarian President Katalin Novak ruffled diplomatic feathers when she posted a picture of herself climbing a mountain peak in Romania’s Alba County, standing by a disputed milestone painted in Hungarian colours.

At the time, Ms. Novak advised Romanian Foreign Minister Bogdan Aurescu that it was her duty to represent “all Hungarians, regardless of whether they live inside or outside the borders” – a claim Romania rejected.

Mr. Orban’s grievance and racially driven nationalism may be one reason the Hungarian leader has been Europe’s odd man out in refusing to sanction Russia for its invasion of Ukraine fully.

In a break with European Union policy, Hungary’s foreign minister Péter Szijjarto met his Russian counterpart Sergei Lavrov in Moscow on the eve of Mr. Orban’s speech to request additional gas supplies.

In contrast to the EU, which wants to remove Russia as a supplier of its energy, Mr. Orban insisted that “we do not want to stop getting energy from Russia, we simply want to stop getting it exclusively from Russia.”

Mr. Orban’s speech is unlikely to ease the task of Tibor Navracsics, Hungary’s regional development minister and a former EU commissioner. Mr. Navracsics arrived in Brussels this week to persuade the EU to release €15 billion in covid recovery funds amid an unprecedented disciplinary process that could lead to the suspension of EU funding because of Hungarian violations of the rule of law.

So far, Mr. Orban’s support of Russia has isolated him in Europe with the de facto demise of the Visegrad 4 or V4 in its current form in the wake of the invasion of Ukraine and the threat of an economic recession.

Grouping the Czech Republic, Hungary, Poland, and Slovakia, the Visegrad 4 were united in their opposition to EU migration and rejection of what the Hungarian leader termed Europe’s “internal empire-building attempts,” a reference to the European Commission’s efforts to stop moves that hollow out Central European democracy.

Leaving Mr. Orban isolated, Slovakian Prime Minister Eduard Heger has pledged to use his current six-month presidency of the European Council to return the Visegrad 4 to the roots of its founding in 1991 as the four countries emerged from communism: respect for democracy and a commitment to European integration.

If successful, Mr. Heger’s V4 will likely be a V3 with Hungary on the outs.

Said Mateusz Gniazdowski, an analyst at the Warsaw-based Centre for Eastern Studies: “Attempts to ideologically use the V4 brand harm mutual trust and don’t contribute to building a strong Central Europe in the EU.”

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The End of History, Delayed: The EU’s Role in Defining the Post-War Order

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While the world is following the dramatic unfolding of the Russian aggression against Ukraine’s sovereignty and territorial integrity, Europe needs to start elaborating its vision for the post-war world. While a new Yalta might be needed, we all should realise that a peaceful world order has never existed outside the European Union. This in itself grants the EU the credibility – and responsibility – for arranging the post-war framework that secures the peaceful future of the continent.

By Dr.Maria Alesina and Francesco Cappelletti*

In the interconnected international society, war is not only a horrific and painful but also irrational choice. It is a zero-sum game, which sets into motion the domino effect of global repercussions. However, rational considerations have little to do with what stands behind the ongoing military attack on Ukraine. Russia’s war is not limited to Ukraine or aimed at a regime change to strengthen regional influence (as realists would say), nor does it represent an attempt to reinforce specific strategic interests (as a cognitivist analysis would suggest). It has emerged as something beyond traditional disputes: it is, as a matter of fact, an ideological war against the West. More than anything, it is Huntington’s “clash of civilizations”, although driven not by ideology or religion but by the two conflicting standpoints on human life – as a value and a non-value. This fundamental clash is happening now on the Ukrainian soil, and the battle is as fierce as it can possibly get.

The propaganda-driven “Rus-zism” rhetoric, missing any solid ideological basis or constructive meaning, consists of an overt anti-Western narrative aiming to establish a multi-polar world order and a vaguely defined concept of Russia’s “greatness”, entrenched in the shreds of evidence given by altered revision of events, such as the Great Patriotic War. A war that, in the eyes of the Russian establishment, has never ended. In the anti-Western rhetoric, the corroborating factor is a series of facts, events, convictions, beliefs, interests that support the leitmotif of the inevitability of “blocks”, an enemy, the “others”. A heritage of the Cold War. All this is grounded in the historical super Troika of the Russia’s foreign policy: fear of external threats, dispersed economic and political inefficiency, and focus on securing citizens’ support – by all means, ranging from propaganda to political repressions. This is a sheer exercise in power without purpose, control without vision, projected both internally and externally. This dynamic, although never fully dissipated, has been re-gaining momentum starting with Putin’s speech at the 2007 Munich Security Conference.

Today, in mid-2022, Russian aggression in Ukraine is only growing in atrocities and cynicism. In contrast, the EU politics still remain a palliative medicine, by definition unprepared to dealing with the concept of war. Political crises in several Member States – Italy, France, Estonia, Bulgaria – risk becoming a further destabilizing factor preventing the EU from fully standing up against Putin’s war plans. Meanwhile, the Europeans are becoming increasingly concerned with the upcoming ‘Russian winter’, recession, global food shortages, and a new migration crisis. As much as citizens advocated for support to Ukraine in the beginning, soon they might start demanding peace at any cost – most likely, Ukraine’s cost. This is the trap that Russia is orchestrating.

However, any simple, although desperately needed, ceasefire agreement risks only deepening the problem and postponing the solution. It will be a matter or years, if not months, when Russia restarts its aggression, possibly better prepared the next time around. The somewhat belated understanding of this simple truth should prevent us from re-engaging into the dilemma of prioritizing short-lived comfort and material gain over long-term solutions based on our fundamental, “civilizational” priorities. We need to remember that Europe’s prosperity has resulted from a prolonged period of peace – not vice versa. Those who threaten the peace, by definition threaten our growth and sustainability. Alongside building up its strategic autonomy for the 21st century, Europe must be prepared to do what it takes to secure a new long-term peaceful world order – not simply patch the old one.

Given that the ‘Russian factor’ will not disappear even after the overt military conflict is over, the Cold War II stands in the midst of diplomatic challenges anticipated for the post-war scenario. On the one hand, as Russia has acquired the official status of the world’s villain, dethroning China from this role, it will continue to face some extent of isolation. Regaining any level of trust will require years, and Moscow will struggle to find a credible audience to speak to when trying to redefine its external relations, while having to deal with a prolonged recession and a technological slowdown never experienced since 1991. On the other hand, without being naïve, we cannot expect any substantial regime changes to happen in Moscow. For centuries, the narrative ‘Russia vs. the West’ has constituted the very central axis of the national public discourse, even within the liberally-minded opposition circles. Such long-standing trends do not change quickly, if ever.

Although no notions of trustworthy diplomacy will bring Russia to the international negotiation tables for a long time, the need to guarantee security goes beyond this conflict and its territorial or ideological implications. The only viable solution is to find a way to contain Russia within a binding and comprehensive international framework. This means a pragmatic approach is needed in developing untouchable geopolitical, diplomatic, and security-related boundaries of the new order. The exact same boundaries that kept the first Cold War “cold”, with the difference that this time one of the great powers involved is – to use Kennedy’s word – declining.

The results of the potential Kyiv-Moscow talks will largely depend on the West’s willingness to avoid grey zones in the future security settlements. It is a matter of responsibility, especially for the EU, to provide a forum to assess, judge, clarify, evaluate, measure, and pragmatically set limits of the new post-war security system. While the US is interested, first and foremost, in slowly weakening Russia politically and economically, Europe’s long-term concern consists primarily in preventing its giant neighbour from disrupting the very basic principles of coexistence on the continent. A zero-trust model should be applied to Russia, while a new paradigm for debates should be developed from scratch: there is no more “balance of power” and “deterrence” to fit into the discourse. The world is now divided into nations that either care or not about commonly accepted principles, rights, and, above all, about the value of human life. The end of history, in 2022, is farther away than expected.

*Dr Maria Alesina and Francesco Cappelletti are Policy and Research Officers at the European Liberal Forum. Dr Alesina holds MA degrees in Political Science and EU Studies obtained in Ukraine, Germany and Belgium and a PhD degree in interdisciplinary cultural studies from Ghent University. She specializes in EU foreign, social, and cultural affairs. Francesco Cappelletti holds an MA in International Relations from the University of Florence and MA in World Politics from MGIMO. Member of Center for Cybersecurity in Florence. He focuses on cybersecurity, digitisation, Russian-Western relations and the relation between sustainability and technologies.

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“No longer analyze Asia with European eyes”, says French expert in Bucharest conference

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A 2-day academic hybrid conference organized in Bucharest at mid-July by MEPEI (Middle East Economic and Political Institute) and EuroDefense Romania, two Bucharest-based think-tanks, was the perfect venue to learn about the latest analyses on economic, geopolitical and security topics related to the Middle East and Asia, during which China was mentioned by all speakers as clearly playing a role in today’s international order. Entitled “Middle East in Quest for Security, Stability, and Economic Identity”, the conference was the 8th in a series of international conferences that annually gather well-known experts from all over the world to present their analyses and research on highly debated topics such as terrorism, Middle East, emerging Asian countries, the rising China, to which this year a new topic was added: the conflict in Ukraine.

Interesting ideas derived from the speakers’ presentations.

Adrian Severin, former Romanian minister of foreign affairs and EU parliamentarian, pointed out that “the conflict in Ukraine is actually one between Russia and the West, but economic sanctions never stop wars, and they even may lead to global disaster”. Severin considers it to be more and more difficult for NATO to defend its allies, with so many countries relying on NATO, and on the US, for their national protection, including non-European countries such as Saudi Arabia and Israel. When it comes to Asia, Severin sees “China to have a first rank role in shaping the world order.”

Teodor Meleșcanu, another former Romanian minister of foreign affairs, stressed that “Asia has the majority of the world’s population and lots and resources, and the future of Asia will assume the future of our civilizations.” Meleșcanu explained that “China wants to stabilize the world and to forge alliances, but not to fight with the West. Chinese trade is not interested in confrontation with Western partners by making alliance with Russia and it’s obvious why – because the West means more than 700 million people whereas Russia means only 114 million.” Meleșcanu suggested that the optimal solution in international relations is to operate with regional organizations in order to have dialogue, not directly with “the big boys in the garden.” Meleșcanu also encourages never-ending dialogue between the US-Russia-China, as the current situation proves it, in order to prevent such events that destabilize the world. He believes that the principles in Norman Angell’s The Great Illusion will always apply, as war does not actually mean conquering territories.  

Lily Ong, host of the Geopolitics360 live show in Singapore, confirmed that regional organizations are vital for dialogue: “Had not it have been for ASEAN, Singapore would have been on the menu, not at the table.”

Foad Izadi from the University of Tehran informed that Iran signed a 25-year agreement with China, and a separate one with Russia, and said “Iran would welcome such 25-year agreements with European countries. It’s Europe’s decision if they really want to follow the US decisions, but the US interests are often not aligned with the European interests”, concluded Izadi.

Vasily Kuznetsov from the Institute of Oriental Studies of the Russian Academy of Sciences in Moscow reminded the audience that Russia and the West cooperated very well in Libya, in fighting against ISIS in Syria, and expressed his confusion about Europe’ militarized approach towards Russia.  He stressed that “the current international situation will result into the strengthening of Asian centres of global power and global economics. China, as well as India and the Middle East as a collective actor become new great powers directly linked to each other, without the West.” At the same time, Kuznetsov sees “for China, a dilemma between pragmatic economic interest and global political ambitions, and for India, a choice between regional and global ambitions outside South Asia”, and he wondered whether “China can have a realistic foreign policy in the Middle East which  is facing issues of internal reconfiguration, sovereignty and security.” For the US, Kuznetsov sees the biggest challenge in the effort “to preserve leadership without more engagement, to make American politics more successful and to combine values and pragmatism.”

 “The rise of China is beneficial not only for China but for entire Asia”, believes Yao Jinxiang from China Institute of International Studies (CIIS) in Beijing. “The rise of Asia will rebalance the world.” Yao also stressed that “people are often biased about Asia. Let us not forget that, apart from the wars led by the US in Asia, Asia has been stable with no war for a long time. The self-control of the Asia countries ensures stability. It looks that it’s easier to attract Europe in a war than Asia. Asian countries try to solve problems by consensus. For example, China, Japan and South Korea step back because ASEAN is the leader. On the other hand, China has always been defensive. China does not want to claim hegemony or to replace the US, or another great power.” Yao equally explained the two terms used to refer to the same region: Asia-Pacific and Indo-Pacific: “Asia-Pacific reflects economic relations, whereas Indo-Pacific rather mirrors the political and military relations”, and he stressed that “China does not want to claim hegemony in this world or to replace the US or another great power. China is only interested in prosperity around the world and it watches carefully the Global Development Index and the Global Security Index”.

Pierre Fournié, French expert on Asia from SUFFREN International think-tank declared the Belt and Road Initiative, formerly One-Belt, One-Road (OBOR), to be “a magnificent project that could be pivotal in Europe” because “trade has always been a peaceful and fruitful relation among countries.” Fournié made clear that the war in Ukraine, inflation, migration, social discontent in Europe and the ongoing reconfiguration of the US society create conditions for Asian nations to become key partners in the post-war reshaping of Europe. “Thus, BRI, or the Indonesian Global Maritime Fulcrum are magnificent assets. Fournié also suggested that ”the current economic model creates tensions, and it’s time for  people to apply mutual aid and to unite to create coo-petition, a term coined by himself, and not competition. He recommended people to “no longer analyze Asia with European eyes.”

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