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International Law

Locating Sustainable Migration Framework in a Globalized World beyond the UNCSR

Photo Credit: © UNHCR/Ivor Prickett

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The traditional understanding of refugee protection and safeguards enshrined in the 1951 UN Convention relating to the Status of Refugees (UNCSR) with its 1967 Additional Protocol has come to a tipping point. The current scenarios of mixed human migration have given a new term that defines the “new refugee” as “migrant” due to the imprecise distinction between refugee and migrant in the wake of enlarging protections and expanded challenges to the refugee interpretation under UNCSR. Today, mixed human migration has become the determinant factor to critically appreciate the experiences, familiar routes, and intentions of refugees and migrants and threats to the protection system in the wake of emerging populist radicalism in the Global North and Global South with equal intensity. Such radical trends are generally backed by the majoritarian political discourse in constitutional democracies. But such revanchist patterns could only be contained by the re-mainstreaming of liberalism in our geopolitical identities.

New Categories in a Globalized World

Thus, the mixed human migration has necessitated the creation of new categories beyond the traditional understanding provided in UNCSR. Historically, the remarkable distinction between “refugee” and “migrant” is based on the institutional recognition of the notion that the refugee enjoys an elevated status in the framework of international law. However, the nation-states and inter-governmental mechanisms attend refugees based on the thresholds of gravity of refugee situations on a particular occasion. Consequently, such arrangements recognize the “refugees” and derecognize the “economic migrant.” However, in reality, it has now become a well-established understanding that such divisions between these categories are difficult to make in a globalized world. Alexander Betts has written about people who flee hostile circumstances and called such flight “survival migration,” especially from unstable nation-states, situations of socioeconomic violations, and climate change-driven displacement that have not yet been recognized as refugees under UNCSR. Unfortunately, there is no political understanding among the UN member states to broaden the limits of the UNCSR definition of a refugee by creating the new protection categories. Therefore, it is imperative in the present scenario to defend the existing “refugee” category, and nation-states strive to extend protection under international human rights treaties to other groups of vulnerable migrants fleeing persecution beyond UNCSR.

Global Compacts on Refugees & Migration

The origin of the Global Compact on Refugees (GCR) and Global Compact on Migration (GCM) is knotty as a global political project. Primarily, in late 2015, the strategy was to conclude and adopt a comprehensive plan of action for Syrian refugees and Mediterranean routes of refugees who have created a refugee crisis in Europe. Therefore, global institutional politics and other multiple reasons paved the way to adopt such a plan of action in January 2016 for organizing an international conference in New York in September 2016 with the mandate to have GCR. Simultaneously, other world institutions also hard-pressed for a similar arrangement called GCM to create equilibrium for proportionate protection. Such segregation was required due to the organizational distribution of business within the UN system. Therefore, the UNHCR (UN High Commissioner for Refugees) was mandated to act upon and implement GCR.

In contrast, Switzerland and Mexico have co-supervised the parallel GCM programme and its modalities for implementation. Though these Global Compacts have common characteristics, gaps, and intersections mainly, there is small space for internally displaced persons (IDPs) and transnational displacement that has not been recognized in the refugee definition. But UNHCR has proposed specific plans for implementing GCM that incorporate significant steps for migrants in vulnerable conditions. As a result, these Global Compacts have been playing relatively different roles as GCR attempts to address the gaps in the UNCSR by ensuring fundamental principles of humanity and international solidarity and strives to implement the principles of burden-and-responsibility-sharing (BARS) for refugee protection, assisting the refugees and supporting the refugee-hosting countries and communities. On the other hand, GCM provides a nascent global migration governance system as a first step. GCM is an intergovernmental agreement brokered by the UN that addresses all dimensions of global migration holistically and comprehensively and confronts the challenges relating to the worldwide movement by strengthening the contribution and engagement of migrants to sustainable development.

The Role of UNHCR & Shifting Global Debate

The position of UNHCR has become challenging as it confronts a multitude of constraints such as cuts in the humanitarian budget by the US, widespread non-compliance with the UNCSR and its Additional Protocol, and the emergence of institutional rivalry with the entry of IOM in the UN system. However, UNHCR has taken a restrained approach and deliberately excluded many parts from the current global debate on GCR, particularly Lego-institutional reforms. The GCR’s Comprehensive Refugee Response Framework (CRRF), Global Refugee Forum (GRF), and a string of Solitary Platforms provide the foundation for the philosophy of change and emplace global arrangement for international cooperation and addressing particular refugee crises. These institutional arrangements in the GCR framework, like CRRF and GRF, stipulate a new development-based and market-driven model of operation with a lot of pragmatism. GCR is an itinerary of actions and actors entrusted to implement the BARS and the entire ambit of modes of contribution on the part of stakeholders. The GCR is a remarkable achievement in its normative and substantive significance and commitments, provided it is executed on the ground. The CRRF has been showing positive results in Ethiopia and Kenya. However, it is the political leadership that has to determine new commitments and promises.

In the present scenario, international institutions require the exceptional and unprecedented capacity to lead collective action based on moral yet pragmatic parleys and diplomacies. World history is a testimony that non-binding intangible and universal commitments of the nation-states incommensurate with the international refugee regime do not serve a significant purpose. At least five to eight years must be demarcated to assess the impact of the Global Compacts on the ground. To do an impact assessment of GCR and GCM along with durable solutions, there are numerous refugee situations like Rohingya refugees in Bangladesh and India, Afghan refugees in Pakistan and Iran, Syrian refugees in Europe, Lebanon and Jordan, Mexican refugees in the US, Somali refugees, Venezuelan refugees in Colombia and Brazil, Afro-Asian refugees in Canada and Tibetan refugees in India. Though the GCM stipulates principles only, it has to evolve its intellectual contours in its initial stages to establish a global migration governance system, and its institutionalization will consume years ahead. However, the GCM is a remarkable achievement that has made migration a head-on agenda item for the UN system.

Global Refugee System: A Critique

Off late, UNHCR has not been innovative and inventive for an expansion of alternatives for refugee protection. It has adopted a guarded approach under which several issues have been put on hold. For long, UNHCR has been avoiding institutional reforms and keeping the refugee definition out of its re-consideration and re-formulation in tune with the current objections by the Global South countries. UNCSR refugee definition is the most significant contention of the Global South countries. It is a Eurocentric formulation and does not cater to the needs of the refugee people from the Global South nation-states. As a whole, the UNCSR regime is regarded as a Global North project imposed on Global South countries. Presently, many UNHCR personnel acquiesce in institutional politics, and the threat has been looming upon them that might jeopardize refugee protection. In such a pessimistic atmosphere, the GCR and CRRF provide a ray of hope for refugee protection. But there would be numerous geostrategic and geopolitical challenges such as the metamorphosis in the thresholds of global world order in terms of the recalibration and transformation of goal-posts of international power politics, the impact of socioeconomic praxis, the emergence of the artificial intelligence in RSD, and immigration procedures, and resurgence of far-right and nihilistic nationalism for minorities, and LGBTQI groups worldwide. Therefore, UNHCR has to continue to adapt to the changing circumstances, particularly by developing and re-crafting its capability for political leadership along with the existing humanitarian leadership in the context of global restrictionism.

Mixed Migration: A Divide between Principles and Pragmatics

The normative understanding of refugee protection and their human rights must not be sandwiched between principles and pragmatics of the regulatory approach. It is the cause of refugee protection that must alone prevail in global institutional priorities, intergovernmental primacies, and political urgencies in any given situation. But the divide between principles and pragmatics of refugee protection has been increasingly widening at an unprecedented scale that has made the UNCSR partially irrelevant, and several governments do not feel embarrassed with their public apathy towards refugees. Even though, immigration has squarely benefited and enriched the host countries of the Global North by building societies based on multiculturalism, pluralism, and cosmopolitanism. However, the political advocacy of right-wing nationalism in Australia, Canada, Europe, the US, South Asia, South-East Asia, and elsewhere conveys that the Global North has been incriminating immigration in the name of pragmatism by undermining the principles of migration.

The far-right nationalism breeds backlash and xenophobia. There is a need to repulse the anti-immigration surge. Global migration is, prima facie, not an immigration narrative alone; instead, it is, predominantly, impregnated with refugee dimensions that have to be dealt with under UNCSR and GCR instead of restrictive immigration laws. Because when immigration law stops, refugee law begins. Immigration law is based on nationalism, and refugee law is based on globalism. The global principles of the rule of law must comport with secular democracy, inclusive human rights, and liberal pluralism. These principles must get the support of the electorates in all geopolitical entities across the world. Such steps will guard these principles from far-right-wing politicians who are hell-bent on eroding universal liberal values. Therefore, the international community must reconcile the idea of liberal internationalism with the notion of secular democracy; otherwise, humanity would not be able to defeat the resurgent Frankenstein of international politics.

Global Public Perception & Sustainable Migration Framework

The global public perception suffers from the fear and impact of the increasing population of refugees and migrants, and Global North countries are reluctant to host them. There are 84 million displaced people worldwide, and out of them, 26.6 million are refugees (as of mid-2021). However, the challenge is greater geographical concentration as 85% of refugees live in low and middle-income countries, and 60% are present in just ten countries. Meanwhile, global migration trends have been mostly steady in terms of proportion to the global population since the 1970s, although the statistics of the people have increased from 70 million to 240 million. However, the refugee crisis has never been a crisis of statistical data; rather, it is the crisis of international politics and trust deficit among the comity of nations. The people of Global North countries are skeptical and fearful of socio-cultural transformation due to the triggering of structural changes with the arrival of refugees. Such changes cause the loss of low-skilled manufacturing jobs, starting of the politics of austerity, and politics-driven campaigns by the far-right-wing politicians in the host countries. In such a situation, the global community must develop a sustainable migration framework based on migrants-oriented policies that address both host and transit countries in equal measures.

One of the biggest challenges in the current world order is reconciling democracy with globalization in the wake of anti-migrant populism in Global North and Global South countries with equal far-right ferocity? It is, indeed, a significant challenge to preserve the optimism in the present world where electoral choices are expressed with technology, and sovereign citizens demand the re- endorsement and re-statement of national sovereignty in all its manifestations. Therefore, such integration of democracy and globalization needs a substantial amount of creativity that includes a new perception about normal human mobility and forced migration. Such optimism needs farsighted global governance supported by institutions and subsidiary organizations of the UNO, regional and other inter-governmental organizations. However, such a possibility right now is absent due to the international orders increasingly becoming more and more obstructive and deterring human mobility. There is a need to have collective measures to address the problem of the exodus of hybrid migration resulting in a backlash in the destination countries. It further jeopardizes the lives of people taking strenuous and frantic travels in search of safer refuge. Such reckless journeys become the cause of mushrooming of criminal syndicates indulging in human trafficking and criminalizing migration networks that mount a massive burden upon the capabilities of refugee-hosting countries while chipping away the thresholds of refugee safety.

Way Forward

On the basis of our cumulative experiences, there is a need to re-imagine the innovative and inventive refugee protection proscenium to respond to grisly human migration in all continents and countries. But it must not be devoid of the principles of Global Human Rights Constitutionalism, and it must discard the discourse of popular nationalism that is anarchist, narcissist, nihilist, and exclusionary in its treatment of RAMS (refugees, asylum-seekers, migrants, stateless). The current Globalized World needs the re-validation and re-assertion of diversity, dignity, multiculturalism and liberal values of the yore. It is an age requiring arrangements for integrating the contesting and opposing interests across the political spectrum in all geopolitical enties. Such measures demand audacious actions, quixotic visions and re-embracing of human rights liberalism beyond the rubrics of UNCSR.

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

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International Law

Russia-Ukraine War, China and World Peace

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image source: war.ukraine.ua photo: Vadim Ghirda

On May 3, when asked about the possible causes of the Ukrainian tragedy, His Holiness Pope Francis speculated about an “anger” probably “facilitated initially by NATO’s barking at Russia’s door. I cannot say whether this anger was provoked, but it was probably facilitated”.

What do the Pope’s words mean? In short, they mean that in international relations – of which the Holy See is Master of the Art – two things count: respect for the other and ignorance. The former is to be always placed as a founding element of peace, the latter is to be eradicated, especially in countries like Italy and in many others, as a factor of war.

Why was the Soviet Union respected and why the same respect and consideration is not owed to Russia? Why with the Soviet Union, after the normalisation of the Prague Spring, did a still divided but wise Europe (today, instead, united only by the banks’ and bankers’ money) and a sharp-witted West, with Russia’s agreement, launch the Helsinki Conference on Security and Cooperation in Europe? Why instead did a powerless Europe, a semi-colony of the United States of America – with the UK as the 51st star on its flag – together with the White House, pretend not to see what was happening in Ukraine? Why did they turn a blind eye to this conflict, which has been going on since 2014, and fomented the rise to power of people who, by inciting hatred against Russia, were under the illusion that NATO would come to their aid, turning Europe into a pool of blood for their purposes?

Do some people probably believe that Russia is still that of Yeltsin, ready to open up – in every sense – to the first master coming along? These are the cases in which respect is lacking and ignorance triumphs.

As to an example of ongoing and consistent respect in foreign affairs, it is useful to comment on a recent speech delivered on April 21 by China’s President Xi Jinping, which developed several points.

He pointed out that, for over two years, the international community has made strenuous efforts to meet the challenge of COVID-19 and promote economic recovery and development in the world. He added that the difficulties and challenges show that the international community has a shared future for better or for worse, and that the various countries must strive for peace, development, and win-win cooperation so as to work together and tackle the different problems that gradually emerge on the scene.

With a view to facing the health emergency, China has provided over 2.1 billion vaccine doses to over 120 countries and international organisations and it will continue to make the pledged donations of 600 million doses to African countries and 150 million doses to the countries of the Association of South-East Asian Nations (ASEAN) to proactively help bridge the vaccine gap.

With specific reference to the economic recovery, President Xi Jinping pledged to keep on building an economy open to the world, strengthening macroeconomic policy coordination and preserving the stability of industrial and supply chains, as well as promoting balanced, coordinated and inclusive development globally. He said: “People need to be put first and development and social welfare must be prioritised. It is important to promote pragmatic studies in priority areas such as poverty reduction, security, food, development finance and industrialisation, as well as work on solving the issue of unbalanced and insufficient development, and move forward by establishing job creation initiatives.”

With regard to the recent war clashes, President Xi Jinping deems necessary to jointly safeguard world peace and security. I wish to add that the Cold War-style mentality – what is happening in Ukraine, i.e. the West disrespecting Russia, considering it an enemy as in the past, but not as strong as in the days of the CPSU – can only undermine world peace. Hegemonism aimed at conquering Eurasia – as the land that holds the remaining raw materials on the planet – and the policy of the strongest country can only undermine world peace. The clash of blocs can only worsen the security challenges of the 21st century.

Why, while the Warsaw Pact (of which the People’s Republic of China was never a member and never wanted to be a member) was dissolved, did the same not happen with NATO? China has always wanted to promote world peace, never wanting to be part of aggressive and barking alliances.

China pledges to advance the vision of common, integrated, cooperative and sustainable security and to jointly preserve world peace and security. It pledges to respect all countries’ sovereignty and territorial integrity; to pursue non-interference in other countries’ internal affairs, and to respect the development path and social system chosen by peoples. It pledges to abide by the aims and principles of the UN Charter; to reject the warmongering mentality (opposing the good countries by default vs. the bad ones conventionally); to oppose unilateralism and to reject the policy of bloc confrontation. China takes all countries’ security concerns and legitimate interests into account. It pursues the principle of indivisible responsibilities and builds a balanced and effective security architecture. It opposes one country seeking its own security by fomenting insecurities in the others. China seeks dialogue and consultation, as well as peaceful solutions to inter-State differences and disputes. It supports all efforts for the peaceful settlement of crises. It refrains from double standards and rejects the arbitrary use of unilateral extraterritorial sanctions and jurisdictions.

It is crucial to adopt a comprehensive approach to maintain security and respond together to regional disputes and planetary challenges such as terrorism, climate change, cybersecurity and biosecurity.

Global governance challenges must be addressed together. The world countries are on an equal footing when it comes to sharing fortunes and misfortunes. It is unacceptable to try to throw anyone overboard. The international community is currently a sophisticated and integrated device. Removing one of its components makes it very difficult for it to function, to the detriment of the party that is deprived by others of its own guarantees that call into question the very existence of a State – such as trying to deploy nuclear warheads a few kilometres from a capital city.

Only the principles of broad consultation, joint contribution and shared benefits can promote the common values of humanity, foster exchanges and inspire reciprocity between different civilisations. No one should believe to be better than another by divine grace or manifest destiny.

True and genuine multilateralism must be pursued and the international system centred on the United Nations and the world order based on international law must firmly be preserved. Great countries, in particular, must set an example in terms of respect for equality, cooperation, credibility and the rule of law to be worthy of their greatness.

In ten years of President Xi Jinping’s leadership, Asia has maintained overall stability and achieved fast and sustained growth, thus creating the “Asian miracle”. If Asia does well, the whole world will benefit. Asia has continued to strive to develop, build and maintain its strength, i.e. the basic wisdom that makes the continent a stabilising anchor of peace, an engine of growth and a pioneer of international cooperation.

These achievements come from as far back as the aforementioned Chinese refusal to join aggressive military blocs. They are based on the Five Principles of Peaceful Coexistence drafted by Prime Minister Zhou Enlai on December 31, 1953, published on April 29, 1954, and reaffirmed at the Bandung Conference on April 18-24, 1955: (i) mutual respect for each other’s territorial integrity and sovereignty; (ii) mutual non-aggression; (iii) mutual non-interference in each other’s internal affairs; (iv) equality and cooperation for mutual benefit; (v) peaceful coexistence.  

They are based on the Eight Principles for Foreign Aid and Economic and Technical Assistance proposed by the aforementioned Zhou Enlai before the Somali Parliament on February 3, 1964, which became the emblem of China’s presence in Africa: (i) China always bases itself on the principle of equality and mutual benefit in providing aid to other nations; (ii) China never attaches any conditions or asks for any privileges; (iii) China helps lighten the burden of recipient countries as much as possible; (iv) China aims at helping recipient countries to gradually achieve self-reliance and independent development; (v) China strives to develop aid projects that require less investment but yield quicker results; (vi) China provides the best-quality equipment and materials of its own manufacture; (vii) in providing technical assistance, China shall ensure that the personnel of the recipient country fully master such techniques; (viii) Chinese experts are not allowed to make any special demands or enjoy any special amenities.

Over the last ten years President Xi Jinping has successfully applied the Chinese doctrine in international relations, following and implementing his country’s multi-millennial traditions of diplomacy. ASEAN’s central place and role in the regional architecture has been strengthened in Asia, preserving the order that takes all parties’ aspirations and interests into account. Each country, whether large or small, powerful or weak, inside or outside the region, contributes to the success of Asia’s development, without creating war frictions. Each country follows the path of peace and development, promotes win-win cooperation and builds a large family of Asian progress.

The ASEAN countries are the following: Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar (Burma), Philippines, Singapore, Thailand, Vietnam (Papua New Guinea and East Timor as observers).

Furthermore, the fundamentals of China’s economy – its strong resilience, huge potential, ample room for manoeuvre and long-term sustainability – remain unchanged. They will provide great dynamism for the stability and recovery of the world economy and wider market opportunities for all countries.

The People’s Republic of China will be fully committed to its new development rationale. It will step up the establishment of a new growth paradigm, and redouble its efforts for high-quality development. China will promote high standards; expand the catalogue for the creation of new computer software; improve investment promotion services and add more cities to the comprehensive pilot programme for opening up the service sector.

China will take concrete steps to develop its pilot free trade zones and the Hainan Free Trade Port will be in line with high-standard international economic and trade rules and will move forward with the institutional opening process.

China will seek to conclude high-level free trade agreements with more countries and regions and will proactively endeavour to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Digital Economy Partnership Agreement (DEPA).

China is moving forward with the Silk Road (Belt and Road) cooperation to make it increasingly high-level, sustainable and people-centred. China will firmly follow the path of peaceful development and will always be a builder of world peace, as well as a contributor to global development and a defender of the international order.

Over the last ten years, under President Xi Jinping’s leadership, the People’s Republic of China has been following the old Chinese saying: “Keep walking and you will not be discouraged by a thousand miles; make steady efforts and you will not be intimidated by a thousand tasks”.

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International Law

The More Things Change…

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The brutality of ethnic cleansing is complete.  It does not distinguish between mother and son, young and old, child or adult.  It goes about its gruesome business without conscience or moral compensation.  It is the conversion of man into an unthinking beast.  It is Putin, Zelensky, Modi and Xi Jinping … all rolled into one.  It is us.  The seed is there, needing only fertile soil to germinate. 

The EU announces more aid to Ukraine — mostly military aid; the US announces more aid to Ukraine — mostly military aid.  The Ukrainians saying ‘we will never surrender’ continue to fight.  The Russians asking for talks are not backing down.  Ukraine’s real value to the world is as an exporter of grain which helps to stabilize grain prices.  Feeding a war therefore, runs counter to such stability.

On the heels of covid and its inflationary fallout, who wants a rise in food prices?  Not India, not Africa, not the EU and Russians are already feeling the pinch.  Perhaps grain exporters in North America could be an exception.  Yet at what cost?

According to the UN Secretary General, Antonio Guterres, the Security Council failed to prevent the war or to end it.  How can it when the most influential member and its European allies are busy funding it?

Human strife is displayed on almost every continent.  Stone throwing at ultra-nationalists by Palestinians after Friday prayers is a routine accompanied sometimes by tragedy.  One side provokes, the other side retaliates.  Stones are thrown, fights  breakout.  The authorities respond and more Palestinians are killed — fifteen last Wednesday.  Is this the big story in Israel?  Of course not.

A TV report accused millionaire Naftali Bennet, the current prime minister, of extravagant expenditure from the public purse at his home, which currently serves as his official residence.

Mr. Bennett disclosed that $26,400 of taxpayer money was spent on his home each month including a $7,400 food bill.  His defense avers that his conduct is within the rules and that his predecessor Benjamin Netanyahu spent, on average, $84,300 per month during his tenure.

Noting his efforts at parsimony, he pointed out he did not employ a cook as he is entitled to.  Instead, the family sent out to restaurants, presumably the best ones, to have food delivered.  Sensitive to the criticism, he states he will henceforth pay for all the food from his own picket.

Sara Netanyahu, his predecessor’s wife, had to admit misusing public funds during a similar scandal and was obliged to pay a $15,000 fine.  The prime minister is paid $16,500 per month — average monthly salary in Israel is $3,500.

Plus ça change …

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International Law

China, the Arctic, and International Law

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arctic silk road

The Arctic involves the interests of several major international actors, and climate change, which necessitates the search for more resources and increases the availability of resources in the region, makes the region more important than ever. In this regard, states are divided into “Arctic states” and “non-Arctic states,” with the former having territorial sovereignty and jurisdiction over the region and the latter not. Nonetheless, non-Arctic states have certain rights, such as freedom of navigation in the Arctic states’ EEZs, as granted by the UN Convention on the Law of the Sea (Xinmin, 2019). Parts of the region that are not under the sovereignty of any state are referred to as the “common heritage of mankind.” Because of its appeal, the region attracts states that are not in the Arctic Circle, with China being one of the most interested. China’s interest in the region can be explained by the country’s need for more resources. First, food security issues are likely to arise in China in the near future, and they must be addressed. Fish resources in the South China Sea have been steadily declining, and China must replace them. Second, China, which relies heavily on imported energy sources, is aware of the growing hostility toward itself and may face a blockage of vital energy resources if the situation worsens. Access to more Arctic sources may assist China in diversifying its risk (Francis, 2020).

Initially, the United States, Canada, and Russia saw China’s interest in the region as a threat to their territorial sovereignty. China joined the Arctic Council as an observer after officially recognizing Arctic states’ territorial sovereignty over the region (Arctic Council, 2021). Observers have limited rights in comparison to member states, which are all littoral states. Observers, for example, do not have the right to vote, and their participation in projects is not always possible (Ghattas, 2013). Nonetheless, the UN Convention on the Law of the Sea (UNCLOS) allows China to participate in fisheries decision-making processes, specifically the catch limit (Francis, 2020). In fact, China participated in the Agreement to Prevent High Seas Fisheries in the Central Arctic Ocean to ban commercial fishing for 16 years in 2018 (Francis, 2020). In addition to the UN Convention on the Law of the Sea, relevant treaties include the UN Charter, International Maritime Organization rules, environmental treaties, and domestic laws of Arctic States (Xinmin, 2019).

In 2018, China published a White Paper outlining its Arctic ambitions. According to the White Paper, China is an active participant in Arctic governance and will remain committed to all relevant treaties and agreements. China has stated unequivocally that it has no intention of challenging any Arctic state and intends to cooperate in the peaceful use of the region (Xinmin, 2019). The White Paper was most memorable for China’s self-description as a “near-Arctic” state, emphasizing China’s geographical proximity to the Arctic Circle. It may imply that China associates itself with a new category that could be used to legitimize its actions in the region. However, former US State Secretary Mike Pompeo criticized this statement, claiming that there were only Arctic and non-Arctic states, implying that the category of “near Arctic” did not exist and did not entitle China to any special rights. Although other Arctic states did not respond positively to the statement, several of them, including Canada and Russia, indicated a willingness to cooperate with China and eventually accept Chinese investments. China is eager to invest in natural resource extraction, scientific research, and infrastructure. China has already invested more than $90 billion, and one of its major projects is the “Polar Silk Road,” an extension of the BRI.

As of now, China has not committed any serious violations of the law in the Arctic. However, experts are divided on whether China will violate international law in the Arctic. One of the arguments is that China is likely to violate the law because it has already violated it in numerous cases, including the South China Sea dispute. Despite the fact that the United Nations has labeled China’s actions in the South China Sea as aggressive, China has largely ignored criticisms. (Francis, 2020). Therefore, supporters of the first argument believe that there will be nothing to stop a country from breaking the law if it prefers to ignore international institutions in some cases. Another argument is that the situation in the Arctic is vastly different from the situation in the South China Sea, and thus it is unreasonable to expect China to engage in similar activities (Buchanan & Strating, 2020). First, there are other great powers in the Arctic region, such as Russia and the United States, which creates a balance of power. Second, the Arctic is governed harmoniously by the Arctic Council through a series of agreements and treaties, whereas the South China Sea has long been a source of contention. Finally, while China is very close to the South China Sea and could potentially expand its territory there, it is not a littoral state in the Arctic and would not be interested in claiming territory in such a remote and logistically difficult region.

For the time being, the second argument appears more convincing because China has been following the law in the region. However, it is difficult to predict how it will act in the face of adversity. Climate change appears to be ongoing, and global warming is likely to allow access to even more resources in the Arctic. Furthermore, climate change is one of the factors that is expected to contribute to food insecurity (WEF, 2022). In that case, competition for the Arctic will inevitably intensify. China has already made investments in the region and declared itself a “near-Arctic state,” implying that it has long-term plans for the region. Therefore, China’s demands and actions need to be taken seriously. Although cooperation in the Arctic is encouraged, tolerance for violations of international law in the region by any state may weaken stability and increase the likelihood of conflict in the long run. To be able to rise smoothly in the Arctic, China must adopt an inclusive strategy and think beyond its own interests, as several major international actors have stakes in the matter (Liu, 2020).

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