Mirage of a rules-based order

BY BRAHMA CHELLANEY, The Japan Times, July 26, 2016

downloadIs the world governed by international law? The attitudes of the world’s two demographic titans, China and India, on international law are a study in contrast, underscoring that compliance with or defiance of rules is often driven by power dynamics and state character.

Consider China’s brazen refusal to respect the recent, legally binding ruling of an international arbitral tribunal that knocked the bottom out of its expansive claims in the South China Sea. Beijing has poured scorn on the ruling, calling it “a farce” and “naturally null and void,” and saying it deserved to be “dumped in garbage.” The choice insults belie China’s loss of face internationally.

Yet, to bring Beijing to heel, there is little that the international community can do — other than punitively restrict imports from China, which no country is willing to do.

China’s open disdain for the verdict stands in sharp contrast with India’s ready acceptance of adverse rulings by international arbitral tribunals between 2013 and 2016 in three separate cases.

One case, initiated by Bangladesh, involved a maritime boundary dispute in the Bay of Bengal. A second case, instituted by Pakistan, related to the Indus Waters Treaty and centered on its challenge to India’s small, 330-megawatt Kishenganga hydropower plant. The third case was filed by Italy over India’s initiation of criminal proceedings against two Italian marines, who were arrested in 2012 for allegedly killing two unarmed Indian fishermen by opening fire from their oil tanker, less than 21 nautical miles off the Indian coast.

In all the three cases against India, the tribunals — just like the tribunal in the South China Sea case against China that was filed by the Philippines — were established under the Permanent Court of Arbitration at The Hague.

India, despite apparent flaws in the rulings, deferentially agreed to comply with the verdicts, thereby underscoring that it lacks China’s power and political will to stage any act of defiance.

Take the Bay of Bengal case, which went largely in Bangladesh’s favor. The arbitral tribunal, in its July 2014 decision, delimited the two countries’ territorial sea, exclusive economic zone and continental shelf, including the area beyond the EEZ of 200 nm. This case ranked as one of the first two in which the extended continental shelf beyond 200 nm was delimited by an arbitral tribunal without waiting for the essential recommendations from the Commission on the Limits of the Continental Shelf (CLCS), which was established under the United Nations Convention on the Law of the Sea (UNCLOS) to define the outer limits of nations’ seabed territory.

In delimiting the boundary between Bangladesh and India, the five-member tribunal left a sizable “gray zone,” which lies beyond Bangladesh’s limit of 200 nautical miles. The gray zone was one of the reasons the delimitation decision was not unanimous. The dissenting arbitrator found the majority’s reasoning unsatisfactory and its delimitation decision arbitrary.

Indeed, two distinct gray areas have emerged in the Bay of Bengal — one where Indian and Bangladeshi territorial control overlaps, and the other with overlapping claims of India, Bangladesh and Myanmar. This is because the gray zone that resulted from the final delimitation line between India and Bangladesh partially overlaps a gray area that emerged from another tribunal’s earlier delimitation of the Myanmar-Bangladesh line in 2012.

Such gray areas are zones of potential conflict. Yet India — which voluntarily went for arbitration, something major powers rarely do — promptly welcomed the ruling, which awarded Bangladesh more than three-quarters of the 25,602-sq.-km disputed territory. The tribunal actually went beyond established jurisprudence to uphold Bangladesh’s contention that the concavity of its coastline necessitated “special circumstances” in the application of UNCLOS to the determination of its maritime boundaries.

Now consider the Indus ruling, delivered in late 2013: The verdict went beyond Pakistan’s challenge to the Kishenganga project (which was allowed to proceed with conditions); the tribunal delivered a general prohibition against drawdown flushing in all new Indian hydropower projects. This potentially affects the economic viability of all future Indian projects on the Indus River and its tributaries in Indian-administered Kashmir: Without the use of drawdown flushing, silt would build up in a project, undermining its sustainability.

The paradox is that the 1960 Indus Waters Treaty remains by far the world’s most generous water-sharing pact, under which India has reserved over 80 percent of the basin waters for its regional adversary. Yet Pakistan has waged a constant battle to keep India on the defensive on the waters issue, including through propaganda and by invoking the treaty’s conflict-resolution procedures, which allow international arbitration or neutral-expert assessment.

Had China been in India’s place, would it have put up with this? It would likely have dumped the treaty itself.

In fact, India’s unparalleled water generosity to Pakistan has invited unending trouble. Within five years of the Indus treaty’s entry into force, Pakistan launched a major war against India to grab the remaining part of the divided Kashmir in 1965, at a time when India had still not recovered from its humiliating rout in the 1962 war with China. Today, Pakistan expects eternal Indian munificence on water even as its military generals export terror across the border to India and Afghanistan.

The case initiated by Italy, for its part, is odd. Long before Italy filed the case, a considerate India had allowed one of the two accused marines to return to Italy in 2014 after he suffered a stroke. India also permitted the other marine to stay in the Italian ambassador’s residence in New Delhi rather than be in jail. In fact, the high court in the state of Kerala allowed the two, after their arrest, to go to Italy for Christmas in 2012.

The issue currently before the five-member tribunal is whether India, under UNCLOS, has penal jurisdiction over the marines for the double murder in its EEZ. The arbitrators, however, have no power to dictate bail conditions for the accused.

However, the tribunal, in an unusual “provisional measures”  order delivered in April this year over India’s objections, stated: “Italy and India shall cooperate, including in proceedings before the Supreme Court of India, to achieve a relaxation of the bail conditions of Sgt. Girone (the second marine) so as to give effect to the concept of considerations of humanity, so that Girone, while remaining under the authority of the Supreme Court of India, may return to Italy during the present (UNCLOS) Annex VII arbitration.”

This was not a directive to let Girone return to Italy but an instruction to both sides to cooperate over a possible further relaxation of his bail conditions so that he “may” go home. Yet, with Italy blocking India’s entry into the Missile Technology Control Regime (MTCR) to secure the return of the remaining marine, the Indian government promptly asked its Supreme Court to let Girone go to Italy, and he was allowed to return. Had Indian naval officers, instead of Italian marines, been involved in the incident, they would still be rotting in jail.

Italy showed how leverage can be employed in diplomacy even to influence criminal proceedings in another country. It was only after Girone returned home that Italy ended its extended obstruction to India’s MTCR admission.

Contrast Italy’s exercise of leverage with India’s reluctance to link the future of the Indus treaty to the cessation of Pakistan’s war by terror, or to leverage its ballooning imports from China to help improve Chinese behavior.

Pakistan’s use of state-reared terrorist groups against India can possibly be invoked by New Delhi, under Article 62 of the Vienna Convention on the Law of Treaties, as constituting reasonable grounds for its withdrawal from the Indus treaty. Instead, Pakistan has just announced its intention to drag India before an international arbitral tribunal again over a new Indus treaty-related issue that it wishes to litigate.

Unlike India, which has repeatedly been summoned before the international justice system, the South China Sea case marked the first time for China to be hauled up before an international tribunal. China’s dismissal of the ruling in that case shows that it is willing to absorb the cost to its reputation as long as it maintains and expands its hold on territory and resources in the South China Sea.

In a world in which power respects power and money talks louder than words, reputation can be repaired. China, after all, paid no lasting international costs for gobbling up Tibet, or for causing the death of tens of millions of Chinese during the so-called Great Leap Forward and Cultural Revolution, or for carrying out the Tiananmen Square massacre of pro-democracy demonstrators.

Indeed, as if to underscore that nothing succeeds like aggression, no one today is talking about getting China to vacate the seven reefs and rocks that it has turned into nascent military outposts in the South China Sea after massive land reclamation. Rather, the talk is about finding ways to dissuade it from further expansionary activities.

International law is powerful against the powerless, but powerless against the powerful. The five veto-wielding permanent members of the U.N. Security Council serve as prime examples of a unilateralist approach to international relations.

Like China today, the other four permanent members have refused in the past to comply with rulings from international arbitration or adjudication, including on issues relating to UNCLOS, which was at the center of the South China Sea verdict. The United States has not even ratified UNCLOS, and it rejected a 1980 International Court of Justice verdict directing it to pay reparations to Nicaragua for illegally mining its harbors.

Although globalization has fundamentally transformed economics, politics, cultures and communications, the world has remained the same in one basic aspect — the powerful cite international law to other states, demanding compliance, but ignore it when it comes in their own way. The notion of universal compliance with a rules-based order remains an illusion.

Long-time Japan Times contributor Brahma Chellaney, a geostrategist and author of nine books, is a professor of strategic studies at the New Delhi-based Center for Policy Research and a Richard von Weizsacker Fellow of the Robert Bosch Academy in Berlin. His latest book is “Water, Peace, and War: Confronting the Global Water Crisis.”

© The Japan Times, 2016.

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