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Do international rules apply only to weaker countries?

by Brahma Chellaney

On the face of it, there is nothing in common between China’s Nov. 23 declaration of an air defense identification zone (ADIZ) extending to territories it does not control and America’s Dec. 12 arrest, strip-search and handcuffing of a New York-based Indian woman diplomat for allegedly underpaying a nanny she had brought with her from India. In truth, these actions epitomize these powers’ unilateralist approach.

A just, rules-based international order has long been touted by powerful states as essential for international peace and security. Yet there is a long history of major powers using international law against other states but not complying with it themselves, and even reinterpreting or making new multilateral rules to further their geopolitical and economic interests. The League of Nations failed because it could not punish or deter some powers from flouting international law.

Today, the United States and China serve as prime examples of a unilateralist approach to international relations, even as they aver support for strengthening international rules and institutions.

Take the U.S.: Its refusal to join a host of critical international treaties — ranging from the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1997 U.N. Convention on the Law of the Non-Navigational Uses of International Watercourses to the 1998 International Criminal Court Statute — has set a bad precedent, along with its international “invasions” in various forms, including cyber warfare and mass surveillance, drone attacks and regime change.

Unilateralism has remained the leitmotif of U.S. foreign policy, regardless of whether a Republican or a Democrat is in the White House. Forget international law, President Barack Obama bypassed even the U.S. Congress when he militarily intervened in Libya and effected regime change in 2011 — an action that has boomeranged, sowing chaos and turning that country into a breeding ground for al-Qaida-linked transnational militants, some of whom assassinated the U.S. ambassador there.

Carrying out foreign military interventions by cobbling coalitions together under the watchword “you’re either with us or against us” has exacted — as Iraq and Afghanistan attest — a staggering cost in blood and treasure without advancing U.S. interests in a tangible or sustainable manner.

Meanwhile, China’s growing geopolitical heft has emboldened its muscle-flexing and territorial nibbling in Asia in disregard of international norms. China rejects some of the very treaties that the U.S. has declined to join, including the International Criminal Court Statute and the Convention on the Law of the Non-Navigational Uses of International Watercourses — the first ever law that lays down rules on the shared resources of transnational rivers, lakes and aquifers.

China has established a hydro-supremacy unparalleled in the world by annexing the starting places of multiple major international rivers — the Tibetan plateau and Xinjiang — and working to re-engineer cross-border flows by building dams, barrages, and other structures. Yet China — the source of transboundary river flows to more countries than any other hydro-hegemon — rejects the very concept of water sharing and refuses to enter into institutionalized arrangements with any neighbor.

At the same time, China has been pressing outward, intimidating its neighbors in a relentless territorial creep. China has never been as large as it is today, except when it was ruled by the foreign Mongol and Manchu dynasties. Yet China remains territorially a revolutionary power bent on upending the status quo in Asia. Its assertive claims rooted in revisionist history and its brinkmanship threaten Asian peace and stability. Through a strategy of “extended coercion,” China is waging creeping, covert warfare in Asia while seeking to neutralize U.S. extended deterrence so as to keep America at bay. Washington, far from coming to the aid of its allies and strategic partners, has chartered a course of neutrality on sovereignty disputes in Asia to help protect its deep engagement with China.

America’s appeal to China to act as a “responsible stakeholder” in the global system undergirds the need for these two powers to address their geopolitical dissonance and the issues arising from it. Yet the world’s most-powerful democracy and autocracy have much in common on how they approach international law.

For example, the precedent the U.S. set in a 1984 International Court of Justice (ICJ) case filed by Nicaragua still resonates, underscoring that might remains right in international relations, instead of the rule of law. The ICJ held that Washington violated international law both by supporting the contras in their insurrection against the Nicaraguan government and by mining Nicaragua’s harbors. The U.S. — which refused to participate in the proceedings after the court rejected its argument that it lacked jurisdiction to hear the case — blocked the judgment’s enforcement by the U.N. Security Council, preventing Nicaragua from obtaining any compensation.

The only major country that has still not ratified UNCLOS is the U.S., preferring to reserve the right to act unilaterally. Yet it seeks to draw benefits from this convention, including freedom of navigation of the seas.

China, for its part, still appears to hew to Mao Zedong’s belief that “power grows out of the barrel of a gun.” So it will not consider international adjudication to resolve its territorial claims in, say, the South China Sea, more than 80 percent of which it now claims. Indeed, it ratified UNCLOS only to reinterpret its provisions and unveil a nine-dashed claim line in the South China Sea and draw enclosing baselines around the Japanese-controlled Senkaku Islands in the East China Sea. Worse still, China has refused to accept the UNCLOS dispute-settlement mechanism so as to remain unfettered in altering facts on the ground.

The Philippines, which has since 2012 lost effective control to China of first the Scarborough Shoal and then the Second Thomas Shoal, has filed a complaint against Beijing with the International Tribunal for the Law of the Sea. Beijing, however, has simply refused to participate in the proceedings, as if it were above international law.

Whatever the tribunal’s decision, Beijing will just shrug it off. Only the Security Council can enforce any international tribunal’s judgment on a noncompliant state. But China wields a veto there and will block enforcement of an adverse ruling, just as the U.S. did in the Nicaraguan case.

Even so, Beijing has mounted punitive pressures on Manila to withdraw its case, which seeks to invalidate China’s nine-dashed line. Beijing’s precondition that the Philippines abandon its case forced President Benigno Aquino to cancel his visit to the China-ASEAN Expo in Nanning last September.

Beijing’s new ADIZ, while aimed at solidifying its claims to territories held by Japan and South Korea, is provocative because it extends to territories China does not control, setting a dangerous precedent in international relations.

China and Japan now have “dueling” ADIZs in the East China Sea, increasing the risks of armed conflict in an atmosphere of nationalist grandstanding over their claims to the Senkaku Islands.

Japan has asked its airlines to ignore China’s demand for advance notification of flights even if they are merely transiting the new zone and not heading toward Chinese territorial airspace. By contrast, the Obama administration has advised U.S. carriers to obey the prior-notification demand.

There is a reason why Washington has taken a different stance on this issue than its ally Japan: Although the prior-notification rule in American policy applies only to aircraft destined for U.S. national airspace, the U.S., in actual practice, demands advance notification of all civilian and military flights through its ADIZ, irrespective of their intended destination.

If other countries emulated the example set by China and the U.S. to establish unilateral claims to international airspace, a dangerous situation would emerge. Before every country asserts the right to establish an ADIZ with its own set of rules, binding multilateral rules must be created to ensure the safety of commercial air traffic. But who will take the lead in this direction — the two countries that have pursued a unilateralist approach on this issue, the U.S. and China?

Now consider the case of the Indian diplomat, whose treatment India’s national security adviser called “despicable and barbaric.” She was arrested and handcuffed as she dropped off her daughter at a Manhattan school, then strip-searched and cavity-searched, and kept in a cell with drug addicts and prostitutes for several hours before posting $250,000 bail.

True, this diplomat, posted at a consulate, enjoyed only limited diplomatic immunity under the 1963 Vienna Convention on Consular Relations. But this convention guarantees freedom from detention until trial and conviction, except for “grave offenses.” Can a wage dispute between a diplomat and her nanny qualify as a “grave offense” warranting arrest and humiliation? Would the U.S. tolerate similar treatment of one of its consular officers?

The harsh truth is that the U.S. interprets the convention restrictively at home but liberally overseas so as to shield even the spies and contractors it sends. A classic case involved CIA contractor Raymond Davis, who fatally shot two men in 2011 in Lahore, Pakistan. Claiming Davis was a bona fide diplomat with its Lahore consulate who enjoyed immunity from prosecution, Washington accused Pakistan of “illegally detaining” him, with Obama defending him as “our diplomat.” The U.S. ultimately secured his release by paying “blood money” of about $2.4 million to the relatives of the two men he killed.

Despite a widely held belief that the international system is pivoted on rules, the fact is that major powers — as in history — are rule makers and rule imposers, not rule takers. They have a propensity to violate or manipulate international law when it is in their interest to do so.

Universal conformity to a rules-based international order still seems distant.

Brahma Chellaney is a geostrategist. You can follow him on Twitter: @Chellaney.

  • http://www.sheldonthinks.com/ Andrew Sheldon

    Quote: “Universal conformity to a rules-based international order still seems distant”.
    The issue is not conformity; the issue is what would be the nature of that universal law, and what is ultimately frustrating it. Its nothing to do with globalisation; its everything to do with state sovereignty and the fact that ‘representative democracy’ has turned statehood into collectivist, sceptical extortion rackets, with each attempting to preserve their own franchise; and using their military or economic muscle to influence other under their parochial, utilitarian agenda that accords with their parties or national interests. Now, this betrays any hope of objectivity and natural law….not that too many people are looking for that, given the age of scepticism.

  • James

    I say Yes to the article’s title. With great power comes great arrogance and self-given privilege to dominate others.

  • Protik

    This also applies while India treating her weaker neighbours.

  • Hawaii Boy

    On the contrary, an ICJ case on the sovereignty of Diaoyutai would likely be decided in Japan’s favor, given the historical circumstances of early Japanese occupation and claim of the islands. The shoals near the Philippines are in some cases only a few tens of miles from major Philippine islands, and Philippine sovereignty would almost certainly be recognized by the ICJ.

  • Harsh Ray

    Might remains right. Nothing has changed since the Stone Age despite all the international laws that we now have. Thank you for this excellent and objective analysis.

  • Harsh Ray

    Have you noticed the fact that U.S. diplomats often employ a retinue of servants below minimum wages while serving in developing countries? Also, are you aware that U.S. embassies breach local labor laws when they employ locals? The U.S. embassies don’t provide superannuation and other benefits to their local employees in breach of the host countries’ laws.