Saturday, April 19, 2014
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The International Misrule of Law

NEW DELHI – On the face of it, China’s recent declaration of an air defense identification zone (ADIZ) extending to territories that it does not control has nothing in common with America’s arrest and strip-search of a New York-based Indian diplomat for allegedly underpaying a housekeeper she had brought with her from India. In fact, these episodes epitomize both powers’ unilateralist approach to international law.

A just, rules-based global order has long been touted by powerful states as essential for international peace and security. Yet there is a long history of major powers flouting international law while using it against other states. The League of Nations failed because it could not punish or deter such behavior. Today, the United States and China serve as prime examples of a unilateralist approach to international relations, even as they aver support for strengthening global rules and institutions.

Consider the US, which has refused to join key international treaties – for example, the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses (which has not yet entered into force), and the 1998 International Criminal Court Statute. Indeed, unilateralism remains the leitmotif of US foreign policy, and this is also reflected in its international interventions, whether cyber warfare and surveillance, drone attacks, or efforts to bring about regime change.

Meanwhile, China’s growing geopolitical heft has led to muscle-flexing and territorial claims in Asia that disregard international norms. China rejects some of the same treaties that the US 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 law to establish rules on the shared resources of transnational rivers, lakes, and aquifers).

Indeed, despite their geopolitical dissonance, the world’s most-powerful democracy and its most powerful autocracy have much in common when it comes to how they approach international law. For example, the precedent that the US set in a 1984 International Court of Justice (ICJ) case filed by Nicaragua still resonates in China, underscoring that might remains right in international relations.

The ICJ held that America violated international law both by supporting the contras in their insurrection against the Nicaraguan government and by mining Nicaragua’s harbors. But the US prevented Nicaragua from obtaining any compensation by vetoing UN Security Council resolutions that called for enforcement of the ICJ’s judgment.

China still hews to Mao Zedong’s belief that “power grows out of the barrel of a gun.” Indeed, while China ratified UNCLOS, it then reinterpreted the provisions to justify cartographic aggression in the South and East China Seas. Worse still, China has refused to accept the UNCLOS dispute-settlement mechanism, thereby remaining unfettered in altering facts on the ground. The Philippines has filed a complaint against China with the International Tribunal for the Law of the Sea. China, however, has simply refused to participate in the proceedings, as if it were above international law.

Whatever the tribunal’s decision, China will simply shrug it off. Only the Security Council can enforce an 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 US did in the Nicaragua case.

China’s new ADIZ, while aimed at solidifying its claims to territories held by Japan and South Korea, is similarly provocative, because it extends to areas that China does not control, setting a dangerous precedent in international relations. 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 US has advised American carriers to obey China’s prior-notification demand. There is a reason for this: Although the prior-notification rule in American policy applies only to aircraft headed for US national airspace, in practice the US demands advance notification of all flights through its ADIZ, regardless of their intended destination.

If other countries emulated the example set by China and the US by establishing unilateral claims to international airspace, a dangerous situation would result. Binding international rules are thus imperative in order to ensure the safety of fast-growing commercial air traffic. But who is supposed to take the lead when China and the US have pursued a unilateralist approach on this issue?

Now consider the case of the Indian diplomat, Devyani Khobragade, whose treatment India’s national security adviser called “despicable and barbaric.” True, as a consulate-based diplomat, Khobragade 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 qualify as a “grave offense” warranting arrest and humiliation? Would the US tolerate similar treatment of one of its consular officers?

The harsh truth is that the US interprets the Vienna Convention restrictively at home but liberally overseas, in order to shield even the military and intelligence contractors that it sends abroad. A classic case involved the CIA contractor Raymond Davis, who fatally shot two men in 2011 in Lahore, Pakistan. Claiming that Davis was a bona fide diplomat with its Lahore consulate, and thus enjoyed immunity from prosecution, the US accused Pakistan of “illegally detaining” him, with President Barack Obama defending him as “our diplomat in Pakistan.”

Despite a widely held belief that the current international system is based on rules, the fact is that major powers 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. If universal conformity to a rules-based international order still seems like a distant prospect, an important reason is that countries that should be leading the charge still so often behave like rogue states.

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  1. CommentedPUNDALIK Kamath

    There is great deal of truth in Chellany's colomn. And difficult to dismiss completely. I have been living in N.America over half century and some years in USA. I believe US mindset, culture, history and behaviour must be viewed as complex and multi-faceted ones. It can be viewed and praised for its generosity, helping others if necessary with blood, etc. but then its some actions can not be justified on ethical and moral grounds issues. Despite all its good things, it has its quota of " Ugly Americans". (Remember the late American Marlon Brando!) and arrogant ass-holes in all levels do society.
    Should America be held to a higher moral standard or not depends on circumstances.

  2. CommentedProcyon Mukherjee

    Unilateralism, when it is more procedural, seems to be less costly, but those that are substantive are associated with high costs. The author has referred to both types; the real question is how do the benefits of a substantive unilateral policy outweigh the general costs that lack of adjustments in the economic and political sphere would usher. The counter-balancing constraint no more being present is a good reason that leads many to the logical plateau of unilateralism, while efficiency gains from institutional cooperation in the international arena does not give very powerful examples to ponder.

    A couple of comments on the example of procedural unilateralism that Mr. Chellaney cited, leaves a sobering thought that even procedural unilateralism could lead to dissonance of the highest order, as is evident in the case of the Indian diplomat, with her limited immunity.

  3. CommentedBrian Warby

    "The strong do what they wish and the weak accept what they must." - Thucydides

    On the one hand, yes, major powers have always shaped the system and played by their own rules - or lack of rules. In many cases it is well worth having a hegemon who cheats once in a while but generally enforces the norms that maintain the public good. On the other hand, when the rule enforcers start cheating too much, all semblance of order breaks down. I think Professor Chellany's implicit argument is that we may be approaching that tipping point. I think he's spot on, although the issue is, of course, more complex than can be discussed in a brief column.

  4. CommentedEric Saunders

    The false equivalency here is disturbing. China has territorial disputes with its neighbors. This is troubling, but the comparison with the US is laughable. The US launches illegal wars halfway across the globe killing millions of people in the Middle East and SE Asia. And then there's the torture, the death squads, the complicity with drug traffickers, assassinations, the overthrows, the aiding and abetting of financial high crimes, the support for jihadis, etc. etc.

  5. Commentedkrushi reddy

    In the words of Ronald Reagan(if am nt wrong). When the world is not unilateral anymore/ in a multilateral era, the world has to run by strict multilateral rules and regulations. This is non-negotiable. If countries fail to do that, there would be serious concerns. Yes, the diplomats issue may be he was biased, but that is what is the whole point. US is biased wherever it's citizens are and interprets the laws liberally. But that's not the case with weaker countries, they can't ensure the implementation of the laws. The strong states don't let this happen, if this continues, there comes a stage where no country would want to implement. Results would be unimaginable, taking the world a few decades backwards!

  6. CommentedHarsh Ray

    An insightful and well argued piece. The U.S. and China have more in common than many think, including on how they approach international law. They seek to hold other states to international rules while remaining unconstrained by those rules. It is thus no surprise that they often keep each other in the loop on their moves in regional conflicts, some of them fuelled by the arms and support these powers provide.

  7. CommentedIvan Yu

    discussed Indian "diplomat" didn't have immunity. the author just demonstrated how biased he is an Indian. there is no analysis, just nationalism :( surprisingly weak article for the Project Syndicate

    1. CommentedHarsh Ray

      The Indian diplomat, as the article points out, did not have full diplomatic immunity. But she had limited diplomatic immunity as a consular official. The issue in this case was not was not immunity but inviolability, as guaranteed by the 1963 Vienna Convention on Consular Relations. That inviolability was breached when over a petty labour dispute, the diplomat was arrested, strip-searched and cavity-searched (including vaginal and anal cavity search), handcuffed, and kept in a cell with drug addicts and prostitutes. Mr. Ivan Yu, you don't seem surprised by this mistreatment because your country China does worse things.

  8. CommentedJeff GE

    The Indian diplomat's offense has nothing to do with her official capacity and the treatment she received, harsh or not, is consistent with the prevailing practice in the US.
    This is an isolated case and has nothing to do with whether US or China uses their power to manipulate international law.

    1. Commentedgopal s

      Very succinct piece of analysis.

      Using this precedence, India should now prosecute Americans in India who under pay Indian maids in India. Moreover, spouses of American diplomats and Counsels should also be investigated for tax and visa fraud and full force of Indian law should be brought against these alien criminals, similar to what US "practices."

      Having said that, a multitude of International laws were broken by the US including the Human trafficking law when US evacuated Indian nationals illegally from Indian soil.

  9. CommentedEdward Ponderer

    While Professor Chellaney's observations are correct and well-documented, they miss two fundamentals:

    Firstly, the issues are not limited to the national level, but proceed--as all things in Nature--as a fractal down to individual human relationships in families, communities, and the business world. Missing this dimension is missing everything, because all with with human ego (i.e., All) are guilty and all are victims, to varying degrees.

    Secondly, while this system of interlocking egos is not dealt with on the atomic level so to speak, all legalisms will be broken for it will always be a matter of "who guards the guardians," rendering such articles as these interesting academic theories on ethics for the discussion of scholars, or those who can make some personal political use of them--but nothing significantly real will arise.

    However, Nature itself--at least its inevitable mathematics--is becoming a game changer. For the pressures to the unstoppable globalization, the human global system that is heading into the loggerhead of human egoistic entropy, is a direct trip into chaos. Chaos can lead to Murphy's law and catastrophe. or if done right, can lead to exactly the kind of distributed sense, communication, and control that the article implies as ideal--but more. because this will not be a lateral human law but a fractal natural law. In other words, we must support the nature of this phenomenon rather than trying to outsmart its evermore intricate complexities. They are far surpassing the abilities of separate stake holders--national, corporate, provincial, communal, or individual, to handle. This "need" for developing human relationships, integral education for us to naturally integrate into this complex system, and to bring about the global mutual responsibility to make it happen--is a real need. It is not one party vs. another, or politics. It is the need for every part of the automobile to be maintained, develped, and utilitzed it stop dead in the rainy wilderness and rust (or just blowup from overheating).

    So let us not focus on endless laws, treaties, and economic systems depending upon simplistic model and "good faith." Rather educate to the desperate need everyone and every entity will have to see the whole system stays afloat to safely reach the shore of the 22nd century.

  10. CommentedZsolt Hermann

    I don't think there is such a thing as "rogue state".
    What we have is domination as a result of our inherently self-calculating, egoistic nature.
    And we had domination all through human history, when individuals, nations who were stronger than others dominated those others in any way they could.
    Today we seemingly have democracy, international laws, UN, agreements, but in truth it is still "stronger dominates the weaker".
    The recent movie "Cloud Atlas" called this "truth", the stronger feasting on the weak, regardless of the age, external settings, masks we try to cover this truth with.
    What is changing today is that as we evolved into a globally interconnected and interdependent human system, we started an equalization process.
    In a global, integral system there cannot be dominant forces, "global leaders", "global policemen", a global, integral system sooner or later balances itself and all parts, large and small become intertwined cogwheels, working mutually together, complementing each other.
    This year we witnessed how the previously dominant "Anglo-Saxon" axis lost its unique leading position, but there will be no other "leaders" taking over as the system does not allow it.
    Now we can fight this, try to resist, but here we are up against forces that are much superior to human society, we are part of the natural system and the laws of the system are binding.
    Or we can learn and understand the system and its laws and start adapting consciously, and fortunately there are a lot of signs lately that "leaders" and the public alike want to follow the conscious adaptation rather than the forced one.

  11. Commentedhari naidu

    A very interesting intervention from a think-tank in Delhi.
    Perhaps India is envious of both US and mainland China for their strategic behavior.

    Suffice it to say, in US Congress, the same strategic perspective is based on *American Exceptionalism*.