Emerging Challenges in Law & War
Vol. 4 No. 1 | Summer 2017
For decades, China has pursued a policy of hands-off diplomacy towards regional and international affairs, while narrowly focusing on internal development. Beijing’s recent approach to the Afghanistan conflict, however, has been a major shift. Getting Pakistan’s full support to help end the Afghan insurgency is a possibility given that the U.S. and Afghan governments have utterly failed to bring it to a close. China’s change may signal a shift in China’s “non-interference” approach. However, despite its early activism in the form of outreach to major actors—hosting the Taliban for talks, participation in Quadrilateral Coordination Group (QCG) and now Russia-led talks—China’s Afghan diplomacy has not produced any desirable results to alter Pakistan’s approach towards the Afghan insurgency. One explanation for this lackluster approach is that Pakistan has successfully stemmed the flow of cross-border militants toward China. Furthermore, post-2014 uncertainty in Afghanistan rather than strategic alterations prompted the shift of China’s Afghanistan policy.
CHINA’S “NON-INTERFERENCE POLICY”: FROM FREE RIDER TO CONTRIBUTOR?
Since the establishment of People’s Republic of China (PRC) in 1949, the concept of “non-interference” has guided the PRC’s foreign policy. Premier Zhou Enlai was an early proponent of the idea when he presented “The Five Principles of Peaceful Coexistence” in the mid-1950s. These principles included: “mutual respect for sovereignty and territorial integrity; mutual non-aggression; non-interference in in one another’s internal affairs; equality and mutual benefit and peaceful coexistence”.[1] The idea was further formalized in the Preamble to 1982 Constitution of the PRC written under Deng Xiaoping.[2] Deng’s “24 Character Formula” is the origin of China’s current policy. In this statement, Deng affirmed a foreign policy of “not seeking to lead” and “bide time, conceal capability but do some things.”[3]...
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[1] Mordechai Chaziza and Ogen S. Goldman, “Revisiting China’s Non-Interference Policy towards Interstate Wars,” The Chinese Journal of International Politics, 2014, p. 94
[2] “Constitution of the People’s Republic of China,” https://www.purdue.edu/crcs/wp-content/uploads/2014/04/Constitution.pdf
[3] Chen Dingding and Wang Jianwei quoted in William Callahan, “Chinese Exceptionalism and Beijing’s Changing Foreign Policy Narrative” at International Conference on Contemporary China, Paris, June 8, 2012, p. 3, http://www.centreasia.eu/sites/default/files/publications_pdf/papers_seminar_20120608_0.pdf
Abdur Rehman Shah
Abdur Rehman Shah is Research Associate at the Center for Research and Security Studies (CRSS), Islamabad. He holds Master’s and M. Phil. in International Relations from Quaid-i-Azam Univer-sity, Islamabad. He is currently pursuing PhD in International Relations at Jilin University, China. He tweets @abdur_shah.
Space cooperation is already taking place in the Asia-Pacific region. At the moment, there are three ongoing space cooperation platforms in this region. Japan and India host two regional forums respectively: the Asia-Pacific Regional Space Agency Forum (APRSAF) (1993) and the Centre for Space Science and Technology Education in Asia and the Pacific (CSSTEAP) (1995). The APRSAF is a loose platform for voluntary information exchange on an annual basis. It does not pursue any legally binding agreements, but rather provides a flexible framework “to promote regional cooperation in space development and utilization through voluntary cooperative efforts of participating countries and organizations.”[1]
The CSSTEAP is affiliated with the United Nations, aiming to provide developing countries with research and educational opportunities. The CSSTEAP was established as an education and research institution, “capable of high attainments in the development and transmission of knowledge in all relevant fields of space science and technology.”[2]
The Asia Pacific Space Cooperation Organization (APSCO), with eight members (Bangladesh, China, Iran, Mongolia, Pakistan, Peru, Thailand and Turkey), is the only inter-governmental space organization in the region, operating on a non-profit basis with full international legal status. As defined in the APSCO Convention, the field of cooperation for the APSCO members includes “1. Space technology and programs of its applications; 2. Earth observation, disaster management, environmental protection, satellite communications and satellite navigation and positioning; 3. Space science research; 4. Education, training and exchange of scientists/technologists; 5. Establishment of a central data bank for development of programs of the Organization and dissemination of technical and other information relating to the programs and activities of the Organization.”[3]
The Convention further provides basic activities for the member states, which include “a) establishing of the Organization’s plans for space activities and development; b) carrying out fundamental research concerning space technology and its applications; c) extending the applications of matured space technology; d) conducting education and training activities concerning space science and technology and their applications; e) managing and maintaining the branch offices and the relevant facilities as well as the network system of the Organization; f) undertaking other necessary activities to achieve the objectives of the Organization.”[4]
It is clear that the APSCO Convention was drafted in a very broad manner to facilitate cooperation between the member states. This open approach to encourage regional cooperation is meaningful. However, one must bear in mind the limited members in this organization, which inevitably weakens the desired effect in the region.
FURTHER DEVELOPMENT OF SPACE COOPERATION IN THE ASIA-PACIFIC REGION
Compared with Europe, the Asia-Pacific region is lagging far behind in the field of space cooperation, which is not conducive to the maintenance of space security in the region. In view of the divergent cultural and historical backgrounds in the Asia-Pacific region, we need to consider a viable approach to promote regional cooperation in space activities.
It is vitally important to create a trusting atmosphere and search for common ground for cooperation among the states. At the international level, the concept of Transparency and Confidence-Building Measures (TCBMs) was put forward to build confidence among the members in the international society.[5] Similar measures will be of utmost importance to build trust in the Asia-Pacific Region. Such measures can include drafting operational rules and/or guidelines for space activities in the region, information-sharing activities, regular consultative meetings in the region.
Space cooperation should be carried out in an open and flexible manner; states in the region should cooperate in good faith. Among the issues in the space field, space security calls for urgent attention. To a large extent, regional space cooperation and regional space security are mutually compatible and interdependent.
Among the wide range of issues in space security, the states may start cooperation by initiating certain programs and taking measures in some neutral and less controversial areas. For example, as a region highly vulnerable to natural disasters, the Asia-Pacific countries have a common recognition of the urgency for cooperation in environmental monitoring and disaster relief at the regional level. Possible cooperation on the use of space technologies and facilities to tackle these issues would be one ideal area for these countries to reach consensus.
In view of the ongoing space commercialization process, the legal status of private entities involved in space activities should be clarified and their interests should be fully emphasized in regional space cooperation since their potential capability in strengthening space industrial security is enormous. It is recommendable and feasible to set up a working group to study the possibility of setting up compulsory and/or optional commercial standards in management, product assurance, and engineering for space industry.
A sustainable institutional arrangement is vital for regional space cooperation. An agency like the European Space Agency (ESA) has obvious advantages in pushing for space cooperation in the European region. At the moment, the APSCO, as the only intergovernmental organization in the Asia-Pacific region, could take up a similar role as the ESA and serve as an ideal platform for the harmonization of space security standards mentioned above. However, the APSCO has now only eight member states with China being the only space-faring nation; there may be doubts as to whether the APSCO can really represent the countries in the Region. In view of the enduring political and cultural differences and mistrust among the countries in the region, a formal and region-wide space organization will take time.
We should not exclude the possibility of other standards organizations in the region or non-governmental organizations to play a role in setting up space security standards. While not legally binding per se, these standards can be applicable to contracts and projects by way of inclusion in cooperation agreements. In the era of space commercialization and privatization, such standards are meaningful for contractual private entities in carrying out their space activities. With different organizations in place taking up the role of setting up space security standards, it will be necessary to have dialogue and exchanges among different institutions and national space agencies to avoid duplication of standards.
CONCLUSION
The development of space technologies is now seen as an important aspect of the military and economic power of a state. With more and more space activities taking place on a daily basis, it has become necessary to think about strategies and means to ensure that the activities are carried out in an orderly manner and that the space objects are well protected. As such, space security has been a hot issue that has drawn the attention of the international community. Just as some scholars long predicted, space technologies have important consequences for the field of space security.
As discussed in the previous sections, the existing space treaties fail to adequately deal with the new issues that arise in the era of space privatization and commercialization. Efforts should thus be made to set up a foundation for continued international cooperation in the interest of all. It is widely accepted that space cooperation is one major mechanism in realizing space security.
Space cooperation in the regional level is occurring at a rather high level after almost six decades’ development of space technologies and space activities. There is also some significant progress in regional cooperation, including the establishment of the first regional inter-governmental organization — the APSCO; however, we must be cognizant of the reality that substantial space cooperation at the Asia-Pacific regional level will require a lot more time and more effort than what we may have expected.
Regional space cooperation would help to create a secure environment for the sustainable development of the space industry where the interests of space entities can be safeguarded by legal certainty and clarity. Undoubtedly, the realization of space security in the Asia-Pacific region through regional space cooperation would help to establish a mutually beneficial development mode for the cooperating parties in the region, and in the end, promote space security for the international community at large.
[1] Asia-Pacific Regional Space Agency Forum Secretariat, APRSAF Brochure, http://www.aprsaf.org/data/aprsaf/APRSAFen_090526.pdf, 2.
[2] The Centre for Space Science and Technology Education in Asia and the Pacific, “Background,” CSSTEAP, June 18, 2017, http://www.cssteap.org.
[3] Asia-Pacific Space Cooperation Organization, The APSCO Convention, October 28, 2005, Article 6.
[4] APSCO Convention, Article 7.1
[5] UN General Assembly Resolution 65/68, December 8, 2010.
Zhao Yun
Zhao Yun is a professor and the Head of the Department of Law at Hong Kong University and currently the Director of the Center for Chinese Law. He teaches Introduction to Chinese Law, China Trade Law, PRC Information Technology Law, and Online Dispute Resolution. He is an arbitrator of the Hong Kong International Arbitration Center, South China International Economic and Trade Arbitration Commission, and Guangzhou Arbitration Commission; an arbitrator of Lehman-Brothers-related Investment Products Dispute Mediation and Arbitration Scheme; a panelist of the Asian Domain Name Dispute Resolution Center and of the Online Dispute Resolution Center of the CIETAC in Beijing. He is also founding Council Member of Hong Kong Internet Forum (HKIF), Honorary Member of Hong Kong Construction Arbitration Center, Member of International Institute of Space Law at Paris. He received his PhD from Erasmus University, the Netherland; his LLM from Leiden University, the Netherland; and his LLM and LLB from China University of Political Science and Law, Beijing.
INTRODUCTION
The South China Sea is the locus of a tense political struggle for territorial control between an increasingly aggressive regional power and a host of small states and their own respective sets of allies. In such a scenario, we can expect that China, the hegemonic state, will attempt to steer the discussions towards bilateral negotiations since its power projection and military capabilities tend to carry greater leverage against weaker states when talks are conducted on a one-on-one basis. In an international system characterized by the absence of a global government, power bends the arc of contention towards the hegemon.
On the other hand, small states in the region like the Philippines, Vietnam, and Brunei have a plethora of strategies and tactics for dealing with regional powers.[1] Their menu of options ranges from direct military balancing on one end and appeasing and bandwagoning on the other.[2], [3] This analysis will focus on the strategy that was chosen by the Philippines against China, which will be characterized as “lawfare.” The paper will proceed as follows: First, it will seek to define the concept of “lawfare” as a strategy and then map out the conditions under which it can succeed and fail. Second, it will apply the framework that was developed in the initial section to the conflict between China and the Philippines in the South China Sea. Finally, the consequences of lawfare use will be assessed, with the end goal of understanding how the Philippines’ victory in the Permanent Court of Arbitration (PCA) inexplicably led to reticence and bandwagoning, a case of historic success morphing into strategic retreat...
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[1] Neal Jesse and John Dryer, Small States in the International System: At Peace and At War (Lanham, MD: Lexington Books, 2016).
[2] Eric Labs, “Do Weak States Bandwagon?” Security Studies 1(3)(1992): 383-416.
[3] Jonathan Hey, Small States in World Politics: Explaining Foreign Policy Behavior (Boulder, CO: Lynee Rienner, 2003).
Rodelio Cruz Manacsa
Rodelio Cruz Manacsa is Associate Professor of Political Science at Sewanee, the University of the South, working on the issue areas of international security, human rights, and comparative judicial politics. He teaches and writes extensively on Philippine politics and law. At the University of the South, he teaches courses on Human Rights, International Law, Terrorism and Global Security, International Security, European Union, and Introduction to World Politics, among others.
INTRODUCTION
There are often misunderstandings among member states in international organizations (IO) regarding the legal nature of certain acts. Issues of privileges and immunities based on the principle of functional necessity, both inherent and implied powers, and the principle of good faith under common law are continuously criticized and debated by both member states and IOs alike. For this reason, international legal order can be a process of continuous transition and constant evolution.
This essay analyzes the development and changes of legal norms in the European Union’s (EU) Common Foreign and Security Policy (CFSP). On that basis, it will unfold by looking at the EU’s legal structure to create a solid framework for understanding the current challenges for common European defense policy in relation to Russia’s involvement in Ukraine. Although there have been substantial legal improvements introduced by the Treaty of Amsterdam (effective 1999) and by the Treaty of Nice (effective 2003) to help clarify the ambiguous nature of the CFSP, its objectives remain wide and abstract. This further precludes the EU from formulating a joint and coherent stance on issues related to defense...
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Monica M. Ruiz
Monica M. Ruiz is an NSEP David L. Boren Fellow in Tallinn, Estonia. At The Fletcher School, she focused on International Security Studies and Conflict Resolution/Negotiations.
Fletcher Security Review: You have done a lot of work on gray zone conflicts. Could you briefly explain what those are for people who are not well versed in the material? Who are the actors involved, what are the target vulnerabilities, and what are the goals actors are seeking to achieve?
Hal Brands: When we talk about gray zone coercion, or gray zone aggression, we are talking about coercion that is more intense than run-of-the-mill diplomacy but less explicit and overt than a full-on military conflict. Gray zone aggressors tend to be revisionist powers; they are actors with some grievance about the current international system. But they don’t wish to pay the costs of overt aggression and full-on war, whether those costs are economic sanctions, confrontation with the U.S. alliance system, or others. And so they pursue coercion in a low-key, calibrated way. A good example is Chinese island building and expansionism in the South China Sea. China is using its power in an assertive fashion to bend the regional order to its liking, by using tools ranging from fishing boats to its maritime militia to economic coercion of its neighbors. But it is remaining well below the threshold of open war.
FSR: When modern revisionist powers are looking to change their relative power, the targets they select for these conflicts are conventionally weaker comparatively. What other vulnerabilities create the potential for gray zone conflicts? Is the conventional power differential the primary driver or are there other factors to consider?
HB: The conventional power differential is very important because it gives the initiator escalation dominance. As a result, the target state feels constrained from responding militarily because it worries that it might well lose if the conflict were to escalate out of the gray zone and into open warfare. For instance, the Vietnamese know there is only so far that they can go in response to Chinese provocations because China is by far the stronger power. The same goes with respect to Ukraine and Russia.
But the differential in conventional power is not the only weakness gray zone targets tend to have. Target states usually have relatively weak state institutions and they often have trouble exerting full control or sovereignty over territory. This is certainly the case in Ukraine, for instance. Targets may also have ethnic or linguistic cleavages that render parts of the population more susceptible to propaganda, subversion, and other aspects of gray zone conflict. Again, this is particularly the case in Ukraine or the Baltic states...
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Hal Brands
Hal Brands is a Henry A. Kissinger Distinguished Professor of Global Affairs at the Johns Hopkins University School of Advanced International Studies (SAIS). He is also the author and editor of several books, the most recent including Making the Unipolar Moment: U.S. Foreign Policy and the Rise of the Post-Cold War Order (2016) and What Good is Grand Strategy? Power and Purpose in American Statecraft from Harry S. Truman to George W. Bush (2014).