Why Japan and India must be partners in Myanmar

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A Japan-India partnership on major projects in Myanmar can help reduce the salience of Chinese influence there.

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BY BRAHMA CHELLANEY, The Japan Times, October 19, 2016

Myanmar’s de factor leader, Aung San Suu Kyi, is seeking to carefully balance relations with major powers as part of her commitment to revive the country’s tradition of employing a neutral foreign policy. Suu Kyi’s India visit this week follows trips to Beijing and Washington.

Myanmar’s geographic, cultural and geostrategic positioning between India and China makes it critical to the long-term interests of both these powers.

Crippling U.S.-led sanctions since the late 1980s pushed resource-rich Myanmar into China’s strategic lap. Sanctions without engagement have never worked. During his 2010 Indian tour, U.S. President Barack Obama criticized India’s policy of constructive engagement with Myanmar, only to return home and pursue, within months, a virtually similar policy. The shift in U.S. policy helped to spur Myanmar’s reform process, thereby ending half a century of military-dominated rule.

Yet today the Obama White House is ignoring that lesson by pursuing a sanctions-only approach toward North Korea, which recently carried out its fifth and most-powerful nuclear test and then conducted a failed missile test launch last weekend.

On her first visit to a major capital since her National League for Democracy (NLD) party came to power almost seven months ago, Suu Kyi in August visited Beijing, not New Delhi where she was educated. Her aim was to smooth over the frayed relationship with China. Ties with China have been roiled by Myanmar’s 2011 suspension of the $3.6 billion, Chinese-financed Myitsone Dam project. The suspension on the eve of China’s national day constituted a slap in the face to Beijing — a loss of face made worse by the fact that the action became a turning point for Myanmar’s democratization and reintegration with the outside world.

The bold move, by demonstrating to Washington that Myanmar was no client state of China and by helping to both change U.S. policy and accelerate the country’s own transition to democracy, set in motion an easing of Western sanctions and ending Myanmar’s international isolation — best symbolized by Obama’s 2012 visit.

After work on the Myitsone Dam was halted midway, China’s relations with Myanmar perceptibly cooled, with several energy and other dam projects also put on hold. Beijing, however, managed to complete multibillion-dollar oil and gas pipelines from Myanmar’s western coast to southern China.

With the rise of a democratically governed Myanmar that is being wooed by all powers and by international investors, China can no longer push its strategic and resource interests by brushing aside questions about the environmental and human costs of its mining and other projects there.

But with China still wielding more leverage over Myanmar than any other power, President Xi Jinping is pushing for the Myitsone project’s revival — or the undoing of the 2011 humiliation. To deflect Chinese pressure, Suu Kyi, before visiting Beijing, appointed a 20-member commission to review Myitsone and other dam projects on River Irrawaddy, the country’s lifeline.

After her China trip, Suu Kyi, as part of her balancing act, visited Washington, where she was warmly received Sept. 14 at the White House. But it was only on Oct. 7 — about 11 months after the NLD won a landslide election victory — that Obama lifted U.S. economic sanctions on Myanmar through an executive order terminating an emergency directive that deemed the policies of its former military government a threat to U.S. national security. Military-related sanctions, however, have been retained.

Suu Kyi, accompanied by key ministers, traveled to India to attend a weekend multinational summit in Goa and then hold bilateral meetings with Prime Minister Narendra Modi and other top officials in New Delhi.

Her visit was part of India’s invitation to member states of the Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC) for a joint summit with the five-nation BRICS (Brazil, Russia, India, China and South Africa) in Goa. Suu Kyi thus met with a host of world leaders in Goa, including Russian President Vladimir Putin and China’s Xi.

Bringing together Bangladesh, Bhutan, India, Myanmar, Nepal, Sri Lanka and Thailand, BIMSTEC holds more promise than the South Asian Association for Regional Cooperation (SAARC), which is likely to remain a stunted organization, largely because of regional concerns over terrorism emanating from one of its members, Pakistan. A SAARC summit scheduled for next month in Islamabad collapsed after India, Afghanistan and Bangladesh accused Pakistan’s Inter-Services Intelligence agency of orchestrating recent terrorist attacks within their borders.

Myanmar is India’s gateway to the east. It was at the India-ASEAN summit in Myanmar’s capital Naypyitaw in late 2014 that Modi launched India’s U.S.-backed “Act East” policy.

When Suu Kyi was in the opposition, India supported Suu Kyi’s democracy movement and sheltered many Myanmar refugees and dissidents, despite engaging with Myanmar’s military government in a carefully calibrated manner to promote political reconciliation and to stem China’s growing clout there.

Today, a key challenge for both Myanmar and India is to manage a difficult and complex relationship with China. Just as India’s northern neighbor historically was Tibet, not China, Myanmar’s neighbor for much of its early history was the independent kingdom of Yunnan, with Tibet also sharing a border with Myanmar until 1950.

Myanmar, like India, has long complained about the flow of Chinese arms to local guerrilla groups, accusing Beijing of backing several of them in its north as levers against it. Still, recognizing that Beijing holds the keys to ending decades of armed conflict in Myanmar, Suu Kyi has given China an important role in her new initiative to promote ethnic reconciliation. Yet, despite China playing mediator, a Suu Kyi-sponsored peacemaking gathering attended by ethnic warlords in Naypyitaw ended in early September without any headway.

China values Myanmar as a strategic asset, viewing its long shoreline as a gateway to the Indian Ocean, where it is seeking to chip away at India’s natural-geographic advantage. Having established a foothold in Myanmar’s Bay of Bengal port of Kyaukpyu, from where new energy pipelines lead to southern China, Beijing is now seeking to open a shorter, cheaper trade route to Europe via Myanmar’s River Irrawaddy, which flows in a southerly direction from near the Chinese border to the Andaman Sea.

Against this backdrop, India can ill afford to neglect Myanmar or persist with its sluggish implementation of projects there. It must actively involve itself in Myanmar, including by collaborating with Japan, with which it enjoys fast-growing strategic cooperation. The giant Thilawa industrial zone southeast of Yangon symbolizes Japan’s investment campaign in Myanmar to gain access to a new market and counterbalance China.

Greater Indian investment in and counterinsurgency cooperation with Myanmar, coupled with an India-Japan partnership on major projects in that country, can help reduce the salience of Chinese influence there and further Suu Kyi’s agenda for a balanced, neutral and pragmatic foreign policy.

Brahma Chellaney is a Richard von Weizsacker Fellow at the Robert Bosch Academy in Berlin and a professor of strategic studies at the Center for Policy Research in New Delhi.

© The Japan Times, 2016.

Why India must not neglect Myanmar

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Brahma Chellaney, The Times of India, October 15, 2016

downloadThe visit of Aung San Suu Kyi, Myanmar’s de factor leader, to India is significant. Myanmar’s geographic, cultural and geostrategic positioning between India and China makes it critical to long-term Indian interests. Yet it took 25 years for an Indian prime minister to visit Myanmar, India’s gateway to the east.

Since that visit in 2012 by Manmohan Singh, India has upgraded its Myanmar policy from constructive engagement to comprehensive interconnection. It was at the India-ASEAN Summit in Myanmar’s capital Naypyidaw in late 2014 that Narendra Modi launched India’s “Act East” policy. Yet, for his own inauguration in office, Modi invited leaders of all regional states, including Mauritius, but not next-door Myanmar, in a reminder of how India episodically neglects an important neighbour.

Suu Kyi’s visit is part of India’s invitation to member-states of the Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC) for a joint summit with BRICS at Goa. Bringing together Bangladesh, Bhutan, India, Myanmar, Nepal, Sri Lanka and Thailand, BIMSTEC is a better alternative for India than the South Asian Association for Regional Cooperation (SAARC), which is likely to remain a stunted organization. Indeed, SAARC boxes India in an artificial regional framework; India’s natural strategic compass is broader.

Suu Kyi, committed to reviving her country’s old tradition of a neutral foreign policy, is seeking to carefully balance relations with major powers. On her first visit to a major capital since her party won a landslide election victory less than a year ago, Suu Kyi in August visited Beijing, not New Delhi where she was educated. Her aim was to smooth over the frayed relationship with China. Ties with China have been roiled by Myanmar’s 2011 suspension of the $3.6-billion, Chinese-financed Myitsone Dam project.

The suspension on the eve of China’s national day constituted a slap in the face to Beijing — a loss of face made worse by the fact that the action became a turning point for Myanmar’s democratization and reintegration with the outside world. The bold move, by demonstrating that Myanmar was no client state of China and by helping to accelerate the country’s transition to democracy, set in motion an easing of Western sanctions and ending Myanmar’s international isolation — best symbolized by Barack Obama’s 2012 visit, the first ever by a U.S. president.

But with China still wielding more leverage over Myanmar than any other power, President Xi Jinping is now pushing for the Myitsone project’s revival — or the undoing of the 2011 humiliation. To blunt Chinese pressure, Suu Kyi, before visiting Beijing, appointed a 20-member commission to review the project.

After her China trip, Suu Kyi, as part of her balancing act, visited Washington, where she was warmly received. But it was just last weekend that Obama lifted U.S. economic sanctions on Myanmar, while retaining military-related sanctions.

Myanmar, like India, has long complained about the flow of Chinese arms to guerrilla groups, accusing Beijing of backing several of them in its north as levers against it. Still, recognizing that Beijing holds the keys to ending decades of armed conflict in Myanmar, Suu Kyi has given China an important role in her new initiative to promote ethnic reconciliation. Yet, despite China playing mediator, a Suu Kyi-sponsored peacemaking gathering attended by ethnic warlords in Naypyidaw ended early last month without any headway.

China values Myanmar as a strategic asset, viewing its long shoreline as a gateway to the Indian Ocean, where it is seeking to chip away at India’s natural-geographic advantage. Having established a foothold in Myanmar’s Kyaukpyu port, from where the new energy pipelines lead to southern China, Beijing is seeking to open a shorter, cheaper trade route to Europe via Myanmar’s River Irrawaddy.

Against this backdrop, India can ill afford to neglect Myanmar, or persist with its sluggish implementation of projects there, or unilaterally conduct cross-border military strikes on Naga guerrillas. While being sensitive to Myanmarese concerns, India must actively involve itself in Myanmar through greater trade, investment and counterinsurgency cooperation to help reduce the salience of Chinese influence and to further Suu Kyi’s agenda for a balanced, neutral and pragmatic foreign policy.

Brahma Chellaney is a geostrategist and the author, most recently, of “Water, Peace, and War.”

© The Times of India, 2016.

Mending Pakistan’s behaviour

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Brahma Chellaney, Mint, September 20, 2016

ypicAfter the bloody cross-border terrorist attack on an army camp in Uri, near the Line of Control with Pakistan, it will be difficult for Prime Minister Narendra Modi’s government to return to business as usual. Uri is just the latest in a string of important Pakistan-orchestrated strikes on Indian targets since Modi’s 2014 election victory: The other attacks occurred at Herat, Mazar-i-Sharif and Jalalabad in Afghanistan and at Mohra, Gurdaspur, Udhampur, Pathankot and Pampore in India.

New Delhi’s response to all the attacks has been characterized by one common element — all talk and no action. This is no different than the response of the governments of Manmohan Singh and Atal Bihari Vajpayee to major terrorist strikes on their watch, including at Mumbai and on Parliament and the Red Fort. It would seem that Indian leaders live up to the biblical adage, “Let every man be swift to hear, slow to speak, slow to wrath”.

With successive governments failing to pursue a coherent, resolute and unflinching strategy to combat Pakistan’s proxy war by terror, India continues to be terrorized, assaulted and bled by a smaller neighbour. A scofflaw Pakistan believes it can continue to gore India with minimal or manageable risks of inviting robust Indian retaliation. The Indian public’s patience, however, has worn thin, putting pressure on the government to start imposing deterrent costs on Pakistan so as to stem the increasingly daring terrorist strikes.

Modi’s own credibility is now at stake. Modi responded to the terrorist storming of the Pathankot air force station at the beginning of this year by sharing intelligence about the attackers with Islamabad and allowing a Pakistani team to visit the base for investigations. This was done in the naïve hope of winning Pakistan’s anti-terror cooperation. Modi’s exchange of saris and shawls with his Pakistani counterpart, Nawaz Sharif — as well as his surprise visit to Lahore to wish Sharif on his birthday and attend his granddaughter’s wedding — attested to how New Delhi was focused on optics rather than on outcomes.

The Uri attack offers Modi a chance to redeem himself on the anti-terror front. How he responds to the latest terror outrage could help shape his political legacy.

Let’s dispel with the fiction that a country can get peace by seeking peace with a renegade, terrorism-exporting neighbour. Each time terrorists sent from Pakistan carry out a barbaric attack in India, Indians circle back to a familiar question: What makes Pakistan sponsor terrorism across its borders? The answer is simple: Waging an unconventional war remains an effective, low-cost option for Pakistan against a larger, more-powerful India. The real question Indians must debate is whether India is making Pakistan bear costs for scripting cross-border terrorism.

India has a range of options in the military, economic and diplomatic realms to start imposing costs on Pakistan, in a calibrated and gradually escalating manner. Strategically, an unconventional war waged by a nuclear-armed nation can be effectively countered only through an unconventional war. Let’s be clear: Pakistan is more vulnerable to asymmetric warfare than India, which also has greater economic and diplomatic resources to squeeze that country.

If India jettisons the 1960 Indus Waters Treaty (IWT), it can fashion water into its most-potent tool of leverage to mend Pakistan’s behaviour. Pakistan has consistently backed away from bilateral agreements with India — from the Simla accord to the commitment not to allow its territory to be used for cross-border terrorism. So why should India honour the IWT?

When Pakistan refuses to observe the terms of the 1972 peace treaty signed at Simla, it undercuts the IWT. It cannot selectively demand India’s compliance with one treaty while it flouts a peace pact serving as the essential basis for all peaceful cooperation, including sharing of river waters.

The IWT ranks as the world’s most lopsided and inequitable water pact: It denies India the basic right to utilize the waters of the rivers of its own state of Jammu and Kashmir for industrial and agricultural production. The main J&K rivers — the Chenab, Jhelum and Indus — and their tributaries have been reserved for Pakistani use, with India’s sovereignty limited to the three smaller rivers of the Indus basin flowing south of J&K: the Beas, Ravi and Sutlej. In effect, the IWT kept for India just 19.48% of the total waters of the six-river Indus system.

Pakistan, by repeatedly invoking the IWT’s conflict-resolution provisions to mount pressure on India, is already undermining the treaty, the world’s most-generous sharing arrangement. Waging water war by such means carries the danger of a boomerang effect.

A balance between rights and obligations is at the heart of how to achieve harmonious, rules-based cooperation between co-riparian states. In the Indus basin, however, Pakistan wants rights without responsibilities: It expects eternal Indian water munificence, even as its military generals export terrorists to India and its civilian government wages a constant propaganda campaign against India’s water “hegemony” and seeks to internationalize every dispute.

The IWT has become an albatross around India’s neck. If India wishes to dissuade Pakistan from continuing with its proxy war, it must link the IWT’s future to Islamabad honouring its anti-terror commitment, or else the treaty collapses. Indeed, a Pakistani senate resolution passed earlier this year, calling for Pakistan to “revisit” the IWT, offers India an opening to renegotiate a more balanced and fair Indus treaty — and, if Pakistan refuses, to stop respecting the terms of the existing pact.

In the absence of an enforcement mechanism in international law, nothing can stop India from emulating Pakistan’s example in not honouring its bilateral commitments.  For example, Pakistan has flouted the Simla treaty’s key terms, including respecting the inviolability of the Line of Control as the essential basis for durable peace.

Guile, dexterity and diligence often can achieve more in international relations than the use of overt force. India can still bring Pakistan to heel without overtly employing force. By employing a mix of military, economic and political tools to squeeze Pakistan, India must wage a silent war to eliminate the threat from a quasi-failed nation that has mocked its patience as cowardice.

Brahma Chellaney is a professor at the Centre for Policy Research.

© Mint, 2016.

Securing the Indus treaty

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Brahma Chellaney, The Hindu, August 5, 2016

edit1Water sharing, transparency and collaboration are the pillars on which the unique Indus Waters Treaty was erected in 1960. Islamabad’s recently unveiled intent to haul India again before an international arbitral tribunal is a testament to how water remains a source of discord for Pakistan despite a treaty that is a colossus among existing water-sharing pacts in the world.

In Asia, the vast majority of the 57 transnational river basins have no water-sharing arrangement or any other cooperative mechanism. India, however, has water-sharing treaties with both the countries located downstream to it, Pakistan and Bangladesh. These treaties govern the subcontinent’s two largest rivers, Indus and Ganges. By contrast, China, despite its unrivalled international status as the source of river flows to more than a dozen countries, stands out for not having a single water-sharing arrangement with any co-riparian state.

Significantly, India’s treaties with Pakistan and Bangladesh are the only pacts in Asia with specific water-sharing formulas on cross-border flows. They also set a new principle in international water law. The 1996 Ganges treaty set a new standard by guaranteeing delivery of specific water quantities in the critical dry season.

India’s Indus largesse

The Indus treaty stands out as the world’s most generous water-sharing arrangement by far, in terms of both the sharing ratio (80.52 per cent of the aggregate water flows in the Indus system reserved for Pakistan) and the total volume of basin waters for the downstream state (Pakistan gets 90 times greater volume of water than Mexico’s share under a 1944 pact with the U.S.). It is the first and only treaty that goes beyond water sharing to partitioning rivers. It drew a virtual line on the map of India to split the Indus Basin into upper and lower parts, limiting India’s full sovereignty rights to the lower section and reserving for Pakistan the upper rivers of Jammu and Kashmir — the so-called “western rivers.”

Today, it remains the only inter-country water agreement in the world embodying the doctrine of restricted sovereignty, which seeks to compel an upriver state to defer to the interests of a downstream state. Treaty curbs, for example, obviate any Indian control over the timing or quantum of the Pakistan-earmarked rivers’ trans-boundary flows.

Given that water is J&K’s main natural resource and essential for economic development, the gifting of its river waters to Pakistan by treaty has fostered popular grievance there. The J&K government in 2011 hired an international consultant to assess the State’s cumulative economic losses, estimated to be hundreds of millions of dollars annually, from the treaty-imposed fetters on water utilisation. Demands in the J&K legislature for revision or abrogation of the Indus treaty are growing since a resolution seeking a treaty review was passed in 2003. The backlash from underdevelopment, made worse by a Pakistan-abetted insurrection, has prompted New Delhi to embark on several modestly sized, run-of-the-river hydropower projects in J&K to address chronic electricity shortages.

Pakistan’s obstructionist tactics

Run-of-the-river projects are permitted by the Indus treaty within defined limits. But Pakistan wants no Indian works on the three “western rivers” and seeks international intercession by invoking the treaty’s dispute-settlement provisions, which permit a neutral-expert assessment or the constitution of a seven-member arbitral tribunal. By aiming to deny J&K the limited benefits permissible under the treaty, Pakistan wishes to further its strategy to foment discontent and violence there.

This Pakistani strategy was exemplified in 2010 when it instituted international arbitration proceedings over India’s 330-megawatt hydropower project on a small Indus tributary, the Kishenganga (known as Neelum in Pakistan). It persuaded the arbitral tribunal in 2011 to order India to suspend work on the project. With Indian work suspended, Pakistan ramped up construction of its own three-times-larger, Chinese-aided hydropower plant on the same river so as to stake a priority right on river-water use.

The tribunal’s final ruling in late 2013 represented a setback for India. It allowed India to resume work on the Kishenganga project but with a stiff condition that India ensure a minimum flow of 9 cumecs of water for Pakistan. Prescribing such a minimum flow went beyond the treaty’s terms and the laws of nature.

More importantly, the arbitrators separately delivered a general prohibition against drawdown flushing in all new Indian hydropower projects. In a 2007 decision on the earlier Baglihar case instituted by Pakistan, an international neutral expert held that gated spillways to help flush out silt were consistent with the treaty’s provisions. Yet the arbitrators, disregarding the Baglihar decision and the common international practice of constructing spillway outlets to control silt build-up, issued a prohibition that potentially affects the commercial viability of all future run-of-the-river projects in J&K.

Pakistan’s move to institute new arbitration proceedings over the Kishenganga and Ratle projects is a fresh reminder as to how India’s unparalleled water generosity has engendered unending trouble for it. In 1960, India thought it was trading water for peace by signing the treaty. Within five years of the treaty’s entry into force, Pakistan launched a war to grab the Indian part of J&K in 1965.

Today, Pakistan’s water relationship with India is becoming murkier due to China’s construction of dams in Pakistan-held Kashmir. While railing against India’s small-sized projects, Pakistan is pursuing mega-dams, such as the 7,000-megawatt Bunji Dam and the 4,500-megawatt Bhasha Dam. By way of comparison, the biggest dam India has built since Independence is the 2,000-megawatt Tehri project in Uttarakhand.

Onus on Islamabad

What China did recently — publicly trash an arbitral tribunal ruling that found it has no legal or historical basis to claim most of the South China Sea — was not an isolated case: major powers rarely go for international arbitration or accept arbitral tribunal awards.

Pakistan, by waging a constant propaganda battle against India on the waters issue, risks undermining the Indus treaty. And by repeatedly invoking the treaty’s conflict-resolution provisions to bring on international intercession, it risks sending the wrong message to India — that compliance with treaty obligations and arbitration decisions is counterproductive. In the absence of an enforcement mechanism in international law, nothing can stop India from emulating the example of the major powers.

Pakistan insists on rights without responsibilities. In fact, its use of state-reared terrorist groups can be invoked by India, under Article 62 of the Vienna Convention on the Law of Treaties, as constituting reasonable grounds for withdrawal from the Indus treaty. The International Court of Justice has upheld the principle that a treaty may be dissolved by reason of a fundamental change of circumstances.

If Pakistan wishes to preserve the Indus treaty, despite its diminishing returns for India, it will have to strike a balance between its right to keep utilising the bulk of the river system’s waters and a corresponding obligation (enshrined in international law) not to cause “palpable harm” to its co-riparian state by exporting terror.

Brahma Chellaney, the author of Water, Peace, and War: Confronting the Global Water Crisis and Water: Asia’s New Battleground, is with the Centre for Policy Research.

Mirage of a rules-based order

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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.

The U.S. needs to support Japanese constitutional reform

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Brahma Chellaney, Nikkei Asian Review, July 18, 2016

downloadJapan’s Prime Minister Shinzo Abe has secured a rare opportunity for constitutional reform following the July 10 election for the upper house of the Diet, or parliament. His ruling coalition now has a supermajority in both houses. Yet he is right to tread cautiously on constitutional change. Since many Japanese remain wary of amending a constitution that is widely seen as having brought a long period of peace, the government would be hard pressed to win a national referendum on constitutional change — even if any proposed amendment passed both houses of the Diet with the required two-thirds majority.

If there is one factor that could help ease grassroots concerns and facilitate constitutional reform, it is American support for the process. This would help blunt criticism from Japan’s powerful pacifist constituency as well as from China, which equates any potential constitutional change with Japan’s remilitarization — even as Beijing frenetically builds up its own military might.

U.S. security interests would be better served by a more confident and secure Japan that assumes greater responsibility for its own defense and regional security. National security reforms in Japan are tied to constitutional reforms. Together, they would help strengthen the central goal of the U.S strategy for the Asia-Pacific — a stable balance of power.

Japan has been a model U.S. ally, hosting a large U.S. troop presence and contributing billions of dollars to support the costs of stationing those forces on its soil. The U.S. has said this assistance is “by far the most generous host-nation support” provided by any of the 27 allies with which Washington has defense treaties. Japan’s financial support is so significant that it is approximately equivalent to the U.S. annual budget for maintaining domestic military bases — a fact that Republican presidential nominee Donald Trump seemed unaware of when he said Tokyo should pay more.

Because of Japanese generosity, it is cheaper for the U.S. to have its troops stationed in Japan than back home. In fact, Tokyo recently agreed to marginally increase its host-nation support after initially seeking to cut its contribution to help reduce Japan’s massive public debt.

More important, the alliance with Japan remains central to the U.S. role in Asia, including maintaining a forward military presence. However, the U.S. faces major new challenges in the region due to the rise of an increasingly assertive China – best symbolized by Beijing’s rejection of the July 12 international tribunal ruling that knocked the bottom out of its expansive sovereignty claims in the South China Sea. China’s creeping aggression in Asia reflects a “might makes right” strategy designed to extend Chinese control to strategic areas and resources — from the East China Sea to the Himalayas.

In this light, peace in Asia demands a proactive Japan. The issue Japan faces is not whether it should remain pacifist, since it is unlikely to discard pacifism, but whether it can afford to stay passive in regional and international affairs. A Japan that is better able to defend itself and to cooperate with friendly Indo-Pacific countries to forestall a destabilizing power disequilibrium in Asia would truly become a “proactive contributor to peace” — a concept popularized by the Abe government.

A weaker defense alliance

If Tokyo, however, fails to carry out further reforms of its postwar institutions and policies to meet the new challenges in Asia, it could not only weaken its own security but also the role of the U.S.-Japan strategic alliance.

By drafting and imposing a constitution after World War II, the U.S. created the problem that Japan now confronts — how to cast off the constitutional albatross. The U.S. must seek to be part of the solution so that Japan, in keeping with American interests, plays a proactive role in Asian affairs and does more for its own defense. Japan can play this role within the framework of its longstanding security treaty with Washington.

It has been largely forgotten that Supreme Allied Commander Douglas MacArthur made his occupation staff hastily write the Japanese constitution in just one week so that it would be ready to coincide with the U.S. national holiday celebrating Abraham Lincoln’s birthday on Feb. 12, 1946. However, it did not come into force until May 1947. No national constitution in the world goes so far as Japan’s in barring the acquisition of the means of war or to renounce “the threat or use of force as a means of settling international disputes.” A defeated Germany escaped Japan-like constitutional fetters because by the time its constitution, or Basic Law, was drafted in 1949, the Cold War was in full swing.

It did not take long for the U.S. to realize that it went too far in defanging Japan when it disbanded its military and imposed the world’s first pacifist constitution. After the Korean War, through a major legal reinterpretation of the constitution it had imposed, the U.S. encouraged Japan to reconstitute its military as “Self-Defense Forces” to make the country the lynchpin of its Asian strategy.

The Japanese constitution suffers from inherent flaws. For example, it defines no head of state, having stripped the emperor, then Hirohito, of all but symbolic power. Article 1 defines the emperor’s position as “the symbol of the state and of the unity of the people,” while Article 3 declares he “shall have no governmental powers, nor shall he assume nor be granted such powers.”

This was deliberate. The U.S. wanted to have the emperor merely serve as the symbol of Japan so that Washington could use him to win public support for the U.S. occupation between 1945 and 1952, while denying him powers to oppose it. Likewise, the force-renouncing Article 9 was designed to keep Japan as an U.S. client state, while depriving it of the ability to ever mount another Pearl Harbor-style attack against the U.S. But today, U.S. security interests would be better served by a militarily stronger Japan.

Another anomaly is the absence of constitutional protection for the Japan Self-Defense Forces, 62 years after they were established, despite popular support for the military. By renouncing “war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes,” the constitution has imposed an impractical fetter from which Japan will have to break free to defend itself from any aggression, as Abe has said.

Contradictions

In truth, Japanese pacifism has been made possible not so much by the constitution as by the fact that Japan is under U.S. security protection. Pacifism, however, has coexisted with contradictory trends. For example, Japan has denounced nuclear weapons and consistently called for a world without them, yet welcomed the nuclear umbrella provided to it by the U.S. Japan has kept its military forces out of combat but has endorsed U.S. military interventions around the world, including the 2003 invasion of Iraq and the 2011 regime change in Libya.

But Japan’s constitutional fundamentalists regard the constitution as sacrosanct, as if it were religious scripture, and oppose any change, even though the U.S. has ratified six amendments to its own constitution since it drafted the Japanese charter. At the other end of the spectrum are Japanese who seek a new constitution. They want Asia’s oldest liberal democracy and one that has not fired a single shot since World War II to frame a new constitution anchored in its own values and traditions.

By placing a high bar to the enactment of any amendment, the Japanese constitution is among the hardest in the world to revise. Just 35% of Japanese support constitutional revision, according to a poll conducted by the Yomiuri Shimbun.

Against this background, only open U.S. support for constitutional reform can make a meaningful difference. It will allay public concerns among the Japanese, with only 23% wanting their country to play a more active role in regional affairs, according to a 2015 survey by the Pew Research Center. Another survey in 2014 revealed that just 15% of Japanese, compared with almost 75% of Chinese, were willing to defend their country — the lowest figure in the world.

Unlike China, Japan is not a revisionist power. Rather, its strategic priorities converge with U.S. regional goals, including maintaining the present Asian political and maritime order to ensure a regional power equilibrium and freedom of navigation in the South China Sea. The U.S., in its own interest, should back constitutional reform in Japan, which has not sent a single soldier into combat since 1945 — a record of pacifism surpassing even that of Germany.

Brahma Chellaney is a geostrategist and author of nine books, including “Water, Peace, and War” (Rowman & Littlefield); he is currently a professor of strategic studies at the Center for Policy Research in New Delhi and a Richard von Weizsacker Fellow at the Robert Bosch Academy in Berlin.

© Nikkei Asian Review, 2016.

When will the U.S. accommodate India’s strategic interests?

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Brahma Chellaney, India Abroad, June 10, 2016

INDIA-US-DIPLOMACY

Indian Prime Minister Narendra Modi has built a personal rapport with U.S. President Barack Obama, and his fourth visit to the U.S. in less than two years highlights warming Indo-American relations. Few doubt that U.S.-India ties are better and closer than ever before. From being estranged democracies in the second half of the 20th century, the U.S. and India have become closely engaged democracies.

Besides a shared love of democracy, three elements drive the U.S.-India strategic partnership: money, military hardware, and Asian geopolitics. Their partnership promises to be a force for stability and security in the Indo-Pacific relations.

The blossoming of ties with the U.S. has become an important diplomatic asset for India. The new warmth in relations, however, has failed to ease Indian concerns over America’s regional policies, including on Pakistan, Afghanistan and terrorism, or address complaints of Indian information technology and pharmaceutical industries about U.S. practices, especially non-tariff barriers.

For the U.S., displacing Russia as India’s largest arms supplier has been a diplomatic coup. The success paralleled what happened in the early 1970s when Egypt switched sides during the Cold War by transforming itself from a Soviet arms client to a buyer of mainly American arms. But in contrast to the perpetually aid-dependent Egypt, India buys U.S. weapons with its own money.

Today, Washington is seeking to further open the Indian market for its businesses. And to suit U.S. corporate interests, it is pressing New Delhi to introduce regulatory and other legal changes, strengthen intellectual-property rights provisions, and initiate broader economic reforms.

Not content with the growth in arms sales — which have risen in one decade from $100 million to billions of dollars yearly — America is aiming to capture a bigger share of the Indian defense market. This objective has prompted its Congress recently to propose that India be treated on par with NATO members for defense sales. The U.S. is also seeking to revive its domestic nuclear power industry by selling commercial reactors to India.

India’s size, location and capabilities position it as a counterweight to China and to the forces of Islamist extremism to its west. Yet, as Obama nears the end of his second term, his India policy bears no distinct strategic imprint. Indeed, critics argue that he has no real Indian policy and that his administration has betrayed a transactional attitude toward engagement with India.

Although Obama’s 2015 New Delhi visit set a firm basis for moving the bilateral relationship forward, it was striking that, on his trip’s last public engagement, he lectured the world’s largest democracy on human rights. This was a subject on which he stayed mum at his next stop — tyrannical Saudi Arabia, which probably has the world’s most odious political system.

The complexity of the U.S.-India partnership is underlined by the fact that the U.S. has little experience in forging close strategic collaboration with a country that is not its treaty-based ally. All of America’s close military partners are its treaty-linked allies. India is a strategic partner, not an ally, of America.

The structural difficulties in India-US relations are not easy to overcome. From the Indian perspective, America’s reluctance to accommodate Indian interests on major regional issues, coupled with the fundamental challenge of managing an asymmetrical relationship, constantly test the resilience of the partnership.

For example, close counter-terrorism and intelligence cooperation between the U.S. and India remains hobbled by America’s continued mollycoddling of the Pakistani military and its rogue Inter-Services Intelligence agency. There are doubts whether the U.S. would fully share actionable intelligence on terrorist threats emanating from Pakistani soil against India because that would prompt India to pursue one of two options that Washington wouldn’t like — either India counteracted the identified threat on its own or urged the U.S. to do it.

Meanwhile, strategic weapon transfers, loans and political support allow China to use Pakistan as a relatively inexpensive counterweight to India. Yet, oddly, America also extends unstinted financial and political support to a Pakistan that has mastered the art of pretending to be a U.S. ally while hosting those that kill U.S. soldiers in Afghanistan, including the Taliban and the Haqqani network. Under Obama, the U.S. has made a financially struggling Pakistan one of the largest recipients of its aid.

Take India’s other adversary, China, which also poses a geopolitical challenge for America. Both the U.S. and India are keen to work together to control the potentially disruptive effects of the rise of an increasingly assertive China.

The U.S., however, seeks to use the China factor to draw India further into the American-led camp while remaining neutral on China-India disputes, including shying away from holding joint military exercises in Arunachal Pradesh. Washington has not criticized China’s $46-billion infrastructure-building plan to use Pakistan as its land corridor to the Arabian Sea and the Indian Ocean. It also ignores China’s egregious human-rights violations.

The U.S. seeks to counter China only where it directly challenges American power, as in the Pacific. In southern Asia, by contrast, U.S. policy regards China as a virtual partner, including on Pakistan and Afghanistan.

In Afghanistan, Washington treats terror-exporting Pakistan as part of the solution when, to Kabul and New Delhi, it is at the core of the problem.

On the other hand, the U.S. views Iran as part of the problem in the Af-Pak belt when the imperative is to co-opt Iran as part of the solution to help build stability in the volatile, terrorist-infested region.

Despite the U.S. recently assassinating Afghan Taliban chief Mullah Akhtar Mansour through a drone strike in Pakistan’s Balochistan province, Washington does not consider the Pakistan-backed Taliban as a terrorist organization. It is willing, as part of a peace deal, to accommodate the Afghan Taliban in a power-sharing arrangement in Afghanistan. It assassinated Mansour because he defiantly and doggedly refused, despite U.S. and Pakistani pressures, to enter into peace negotiations.

The assassination, ironically, exposes both Pakistan and America. The fact that the Taliban chief was killed inside Pakistan has contradicted years of denials by Pakistani officials that they were harboring Taliban leaders. Pakistan found its sovereignty violated again, after the raid that killed Osama bin Laden in 2011, by the power that still showers it with billions of dollars in aid.

As for the U.S., it has yet to offer an explanation as to why it took almost 15 years to carry out its first drone strike in Pakistan’s Balochistan province, even though the Afghan Taliban leadership set up its command-and-control structure there after being driven from power in Kabul by the 2001 U.S. military intervention in Afghanistan.

Against this background, no realistic assessment can focus merely on areas where the U.S.-India relationship has thrived — such as U.S. arms sales to India and booming bilateral trade — while ignoring U.S. policies that compound India’s regional security challenges.

In fact, India’s one-sided defense relationship with the U.S., locking it as a leading American arms client, suggests that New Delhi has drawn no appropriate lessons from its protracted reliance on Russian weapon supplies earlier.  Significantly, while U.S. arms to India fall mainly in the category of defensive weapons — which simply cannot tilt the regional military balance in India’s favor — Russia has over the years armed India with offensive weapon systems, including strategic bombers, an aircraft carrier, and a nuclear-powered submarine.

The paradox is that while India has emerged as the largest buyer of American arms, Pakistan is one of the biggest recipients of American alms. This suggests that U.S. profits from arms exports to India help to lubricate America’s aid-to-Pakistan machine. Such U.S. aid also bolsters China’s strategy to box in India while encouraging Pakistan to diabolically sponsor cross-border terrorism.

It is the task of Indian diplomacy to build a robust bilateral relationship while ensuring that it advances, not weakens, the country’s security interests in the region and beyond.

Indian diplomacy has failed to employ leverage from arms-import deals, greater market access to U.S. businesses, and broader geopolitical cooperation to persuade the U.S. to refine policies in southern Asia so that they do not adversely affect Indian security and to dismantle non-tariff barriers against Indian IT and pharmaceutical firms.

Indeed, New Delhi has not even tried to utilize the services of the large and increasingly influential Indian American community. The mistake Indian diplomacy has made is to put the emphasis on bilateral summit meetings and lofty pronouncements to showcase progress. The American side has been happy to pander to this Indian weakness.

In fact, one reason the U.S. is hosting Modi in the twilight of the Obama presidency is to help smooth ruffled feathers. After all, Obama earlier this year unveiled $860 million in new aid to Pakistan under the Overseas Contingency Operations fund, dubbed the “slush fund” because it is not subject to the same oversight as the regular Pentagon and state department budgets. Additionally, he decided to reward Pakistan with eight more subsidized F-16s, a subsidy burden the U.S. Congress hasn’t taken kindly.

Moreover, ever since the 2005 nuclear deal, Washington has been promising to help facilitate India’s admission to the Nuclear Suppliers Group, the Missile Technology Control Regime, and other U.S.-led export-control regimes — a promise reiterated when Obama last visited India. However, the U.S. has invested little political capital thus far to promote India’s inclusion in these cartels. An emboldened China has now emerged as the principal opponent to India’s membership, especially in the NSG.

And thanks to MTCR-related criteria in U.S. export-control regulations, Indo-U.S. space cooperation remains very limited.

In this light, the nice gesture of setting up Modi’s address to the U.S. Congress can be seen as an American attempt to pander to India’s collective ego. India must capitalize on the symbolism of the warming ties with the U.S. to expand the areas of bilateral understanding and cooperation while nudging America to be more accommodative of its vital strategic interests.

The promise of a strong, mutually beneficial partnership cannot be realized without concrete action.

Brahma Chellaney — Professor of Strategic Studies at the New Delhi think-tank Center for Policy Research in New Delhi and a Richard von Weizsäcker Fellow of the Robert Bosch Academy in Berlin — is one of India’s leading strategic thinkers.

© India Abroad, 2016.