December 20, 2013

International law only for weaker states?

Brahma Chellaney

The harsh truth is that the U.S. interprets the 1963 Vienna Convention on Consular Relations restrictively at home but liberally overseas so as to shield even the spies and contractors it sends

On the face of it, there is nothing in common between China's declaration on November 23 this year of an air defence identification zone (ADIZ) extending to territories it does not control and America's arrest, strip search and handcuffing of a New York-based Indian woman diplomat on December 12 for allegedly underpaying a domestic help she had brought with her from India. In truth, these actions epitomise the unilateralist approach of these powers.
A just, rules-based international order has long been touted by powerful states as essential for international peace and security. But 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.
Disregarding global treaties

Take the U.S. Its refusal to join a host of critical international treaties — 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. Add to this 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 Democrat or a Republican is in the White House. Forget international law, President Barack Obama bypassed even Congress when the U.S. militarily intervened in Libya and effected a regime change in 2011 — an action that has boomeranged, sowing chaos and turning that country into a breeding ground for al-Qaeda-linked, transnational militants, some of whom assassinated the American 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 show — 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.
America's appeal to China to act as a "responsible stakeholder" in the global system undergirds the need for the two 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.

Might remains right

For example, the precedent the U.S. set in an International Court of Justice (ICJ) case filed by Nicaragua in the 1980s 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 harbours. 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. Nonetheless, it seeks to draw benefits from this convention, including freedom of navigation of the seas.
For its part, China 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 per cent of which it now claims arbitrarily.

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