Do international rules apply only to weaker states?

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 diplomat for allegedly underpaying a nanny she had brought with her from India. Still, these actions epitomize these 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 using international law against other states but not complying with it themselves, and even reinterpreting or making new multilateral rules to further their 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 UN 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 the picture its international “invasions” in various forms, including cyber warfare and Orwellian surveillance, drone attacks, and regime-change interventions.

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 he militarily effected a regime change in 2011 in Libya — an intervention that has backfired, 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 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 same 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 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 reengineer 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 steadily outward on its borders, intimidating its neighbors through military incursions as part of 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, along with its penchant for 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 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 the two powers to address their geopolitical dissonance. Yet the world’s most-powerful democracy and autocracy have much in common on how they approach international law.

For example, the precedent that the U.S. set in a 1984 International Court of Justice (ICJ) case filed by Nicaragua still resonates globally, underscoring that might remains right in international relations, instead of the rule of law.

The ICJ held that Washington violated international law both by aiding 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 important 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 arbitrarily.

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 in order to remain unfettered in altering facts on the ground.

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

Whatever the tribunal’s decision, Beijing will simply 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 three months ago.

Beijing’s new air-defense zone, while aimed at solidifying its claims to territories held by Japan and South Korea, is provocative because it extends to areas China does not control, setting a dangerous precedent in international relations. China and Japan, and China and South Korea, now have “dueling” ADIZs, increasing the risks of armed conflict, especially between Japan and China, in an atmosphere of nationalist grandstanding over conflicting claims.

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 headed for U.S. national airspace, the U.S., in actual practice, demands advance notification of all civilian and military flights through its ADIZ, regardless 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 result. Before every country asserts the right to establish an ADIZ with its own standards, binding multilateral rules must be created to ensure the safety of the fast-growing commercial air traffic. But who will take the lead in this direction — the two countries that have pursued a unilateralist approach on this issue?

Now consider the case of the Indian diplomat, whose treatment India’s national security adviser called “despicable and barbaric.” The 39-year-old diplomat was arrested and handcuffed as she dropped off her daughter at a Manhattan school, then stripped and cavity-searched and kept in a cell with drug addicts and prostitutes for several hours before posting $250,000 bail.

True, this consular official enjoyed only limited diplomatic immunity under the 1963 Vienna Convention on Consular Relations (VCCR), unlike embassy-based diplomats who have broad protection under the 1961 Vienna Convention on Diplomatic Relations (VCDR). But the VCCR 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? The U.S. would not have dared to arrest a Chinese or Russian diplomat for a similar offense. In fact, just days earlier on Dec. 5, when New York prosecutors charged 49 past or present Russian diplomats and their spouses for an alleged $1.5 million Medicaid fraud, no one was arrested, let alone strip-searched and handcuffed, although some of the defendants still worked in New York at the Russian Consulate and the Russian Mission to the United Nations.

The U.S. had no legal grounds to arrest the Indian diplomat because the alleged offense — violating an agreement on the wages of a single employee — cannot pass the “grave” test. The issue was not immunity but inviolability (from arrest, strip-search, and handcuffing) as guaranteed by the VCCR. Instead of treating her as a criminal, why didn’t the U.S. simply ask India to withdraw her? Would the U.S. tolerate similar treatment of one of its consular officers?

The harsh truth is that the U.S. interprets the VCCR restrictively at home but liberally overseas so as to shield even the spies and contractors it sends. A classic case involved the CIA contractor Raymond Davis — supposedly an “adviser” at the American consulate in Lahore, Pakistan — who fatally shot two men in 2011 on a Lahore street. Claiming that Davis was a bona fide diplomat who enjoyed immunity from prosecution, Washington accused Pakistan of “illegally detaining” him, with Obama defending him as “our diplomat.”

The U.S. included the name of Davis on the list of its diplomats serving in Pakistan only after he committed the double murder, according to Husain Haqqani, Pakistan’s then ambassador to the U.S. The U.S. ultimately secured his release by paying “blood money” of about $2.4 million to the relatives of the men he killed.

When the U.S. invokes immunity for one of its diplomats, it is never for a trifling offense, such as underpayment to a nanny. In a case last July, the U.S. spirited out a diplomat from Kenya barely 24 hours after he rammed his speeding SUV into a full minibus, killing one and wounding eight others.

China, for its part, has not ratified even the U.N. International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. It persists with gross human-rights abuses.

Despite a widely held belief that the present international system is pivoted 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.

Given the innately self-calculating and self-aggrandizing human nature, nations — like individuals — have all through history sought to gain dominance over the weaker ones. The advent of new technologies and reduced transportation costs has made the world increasingly interdependent in trade and capital flows, with the interdependencies extending to technological, public-health, environmental, and climate spheres. Globalization, in turn, has spurred new international treaties and rules.

Yet the more the world has changed, the more it has remained the same in one basic aspect — the stronger still dominate the weaker.

While the weak remain meek, strength respects strength. The U.S. and China are careful not to tread on each other’s toes. Neither is willing to challenge the other directly.

China’s assertiveness has been largely directed at its neighbors. It did not veto the U.N. Security Council resolution on Libya that NATO used as a cover to oust the regime of Muammar Gaddafi. The U.S., for its part, has not only refused to take sides in the sovereignty disputes between China and its neighbors, but also failed to honor its Mutual Defense Treaty obligations with the Philippines despite China’s effective seizure of the Scarborough Shoal and the Second Thomas Shoal. Indeed, Washington has looked the other way as Beijing — in defiance of the guidelines of the U.S.-led Nuclear Suppliers Group (of which China is a member) — launched work on two new nuclear-power reactors in Pakistan in November 2013, in addition to the two reactors already in advanced stage of construction.

Universal conformity to a rules-based international order thus is still not on the horizon. Indeed, the real issue is as to who will guard the supposed guardians of the international system.

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