Tag: international law

Manila on the Chinese bandwagon

The Philippines becomes the first Indo-Pacific country to declare itself for Beijing

On the geopolitics of the Indo-Pacific, I have long argued that “the small- and medium-sized countries of the region will prefer a balance where no single power dominates over them. If they do not see this forthcoming, they are likely to join the stronger side.”

Rodrigo Duterte, the president of the Philippines, appears to have decided that that stronger side is China.

“America has lost now. I’ve realigned myself in your ideological flow,” he said at a business forum in Beijing on Thursday. “And maybe I will also go to Russia to talk to Putin and tell him that there are three of us against the world: China, Philippines and Russia. It’s the only way.” [CNN]

There were indications of this for the last few months, but the manner in which he announced a “separation” from the United States, the Philippines’ treaty ally since 1951, could not have been more designed to ingratiate Beijing, his newfound benefactor. Mr Duterte calculates — correctly, in all likelihood — that China will now shower the Philippines with exemplary largesse. It is in Beijing’s interests to demonstrate that those who decide to join the Chinese side will be rewarded, as long as they are willing to ignore some trifling territorial disputes and international arbitration verdicts.

I have also argued that there is a Chinese wedge between ASEAN states that have a dispute with Beijing and those that don’t. That wedge has just gotten deeper and wider. The ASEAN agenda on maritime cooperation is now in question, as Philippines joins other pro-China ASEAN members in being uninterested in confronting China. Vietnam, in particular, will be under a lot more pressure.

The Philippines remains a pro-American country. It is also likely that parts of the country’s security establishment have deep links with the US armed forces. How Mr Duterte’s policy will go down with the people and the security establishment remains to be seen.

Leave the Indus treaty alone

It is unwise for New Delhi to play up the water threat

Last week CNN-IBN called me while I was driving back home, and asked if they could put me on live television to comment on what the producer said was “India’s threat to cut off Pakistan’s water supply under the Indus River Water treaty”. Had I not been stationary at the traffic signal when I heard this, my reaction might have harmed innocent motorists on the road. Despite my reluctance—as I had not familiarised with the facts—the producer patched me to the programme. I made three points.

First, the threat of cutting off water targets the Pakistani people and not the military-jihadi complex that is India’s irreconcilable adversary. Further, this mis-targeting strengthens the military-jihadi complex because it strengthens the latter’s position as the defender of the Pakistani people, who will unite around it.

Second, cutting off water is tantamount to an act of war and India will be seen as the aggressor. Even then, it would be unwise for New Delhi to go to war in response to a terrorist attack on a military camp near the Line of Control.

Third, the best that can be said about the hints of cutting off water is if it were “deliberate irrationalism”, calculated to persuade the adversary that New Delhi is not rational and can respond in grossly disproportionate ways.

Upon reaching home, I found out that the producer had taken an almost mischievous hint by the MEA spokesman and framed it into one of New Delhi actually threatening to cut off water to Pakistan. Even so, New Delhi seems to be weighing this option enough to warrant a briefing to the Prime Minister today.

It would be unwise for New Delhi to proceed in the direction of holding out reneging on the Indus Water Treaty as a coercive threat. Mainly because such talk is superfluous. A person holding a gun to your head does not have to declare that he has a gun pointed towards your head.

While the Pakistani people benefit from the Indus Waters Treaty—and India’s scrupulous observance of its terms even during major wars—the Pakistani military establishment and jihadi groups would love for New Delhi to dangle this threat. The establishment would lose no time to play up the threat that India poses to the survival of Pakistan and quickly find a way to turn “differences” into “disputes” (these terms have specific meanings under the Treaty) and take it to the Court of Arbitration. If the Court rules against India—and it is likely to, if India were to “cut off water”—then a reference to the UN Security Council will be the next step. Now, the UNSC might lack enough power to compel India to keep to terms New Delhi does not wish to, but to do all this in the current circumstances would be an overkill (self-overkill, that is).

While all this is happening, the jihadi groups would lose no time in openly mobilising, with official support, and engaging in collecting funds, minds and warm bodies. It makes little sense for New Delhi to energise an industry that is not doing too well in Pakistan.

All this is even before considering the possibility of what might the Pakistani military establishment do should India threaten to cut off water supplies. There is no doubt that India is military prepared to dominate Pakistan at all levels of escalation. The question is: can this be done with relatively lower cost to itself?

Narendra Modi’s words over the weekend inject wisdom into the hysterical jingoism that dominated the public discourse last week. He suggested that India can defeat Pakistan by winning the development race. He also drew the distinction between the Pakistani leadership and the Pakistani people. Readers of this blog will know that this is what I have long advocated. Of course, this must be accompanied by defensive measures, political overtures to close the affective divide in Jammu & Kashmir and tactical military sort of things that are best not spoken about.

As for the Indus treaty, it is in India’s interests to hold out a model where difficult issues can be sorted out as technical matters rather than highly emotive political ones. It is one of the best examples of India’s bona fides. It is not in the national interest to throw away this wicket.

From the archives: Sharing the Indus (January 2005) and the Dam difference is over (February 2007).

Looking for morality in chemical composition of death devices

The debate in Washington is about guilt management, not Syrian lives.

The very public handwringing and teeth-gnashing that is Barack Obama’s decision-making on intervention in Syria is on the surface and according to the protagonists about upholding international humanitarian norms, punishing regimes that transgress them and maintaining US credibility. To do some or all of the above, they argue, the Washington must punishing Syria’s president Bashar Assad and his government for having used chemical weapons against its own civilian population.

Much of this is strange (and strangely doesn’t appear to be strange for many people) because the ‘international community’ seems to be less concerned about dead Syrian civilians as long as they died from chemicals like gunpowder, TNT, RDX or PETN. However if the same dead Syrian civilians had died from other chemicals like Sarin, it is concerned that ‘norms’ have been violated.

No, this is not an argument to give the use of chemical weapons a pass—rather, it is to make the point that such distinctions neither address the humanitarian cause nor lead to clear thinking about what the international community ought to do when civilians are being subjected to mass atrocities.

Making the use of chemical weapons the “red line” is in effect a license to odious regimes to do just what they want with conventional weapons (note the loaded term ‘conventional’ weapons). If the proposed Russian-brokered compromise—where Syria will place its chemical weapons under international supervision—comes to fruition, the international community will be forced to be a wilful bystander as the Assad government and its opponents go about committing atrocities against civilians. The death toll is both a function of the type of weapons used and how long the conflict endures. As we found out in Rwanda, it is possible to kill millions of people in months using such simple mechanical weapons as machetes.

Yet the international community seems not to be interested in finding ways to end the conflict. How can we explain its preparation to use military force without even first making a serious attempt to engage Iran?

Washington’s old dogmas on Iran, war weariness from Iraq and Afghanistan, and new fashions on protecting international norms has clouded the Obama administration’s fundamental reading of the situation. In an shocking display of serpentoleum salesmanship or dangerous naïveté the US secretary of state claimed that military intervention in Syria does not mean going to war. What Washington had in mind was an “unbelievably small, limited” strike that would rap Mr Assad’s knuckles. He didn’t say—and no one bothered to ask—what after that? [See the previous post on why such claims are dubious.]

Mr Kerry’s boss had already passed the buck to the people’s representatives. His reluctance to use force is understandable, but he has to wrap his position in a label that would mean different things to different domestic constituencies. One thing he can’t say though is that what Western governments are concerned about is not upholding moral norms—for if it were so, then the chemical composition of Syrian ordinance wouldn’t have mattered. What they are really concerned about is upholding arbitrary norms of international guilt mitigation.

There’s a certain dishonesty to liberal internationalist claims of international humanitarian norms. The need to cover that dishonesty causes the rather shameful performances that we’re seeing in Washington.

When Italy behaved like a rogue state

Turning a legal issue into a geopolitical one has raised the stakes and hurt bilateral relations.

The Italian government reneged on its commitment to the Indian Supreme Court and unilaterally refused to return two of its marines, under trial in India for murdering two fishermen in India’s waters, after they were allowed to visit home first for Christmas (Christmas!) and second, to vote (vote!). (See an earlier post on the legal issues relating to this case)

The Supreme Court order, issued by a bench headed by the Chief Justice Altamas Kabir, allowed the accused’s petition on the basis of an affidavit filed by the Italian ambassador and based on the surety of his (and thereby the Italian government’s sovereign-) guarantee. Unlike the earlier instance when the Kerala High Court permitted them to visit Italy for Christmas, the Supreme Court did not ask for any bond to be posted. The Court can perhaps not be faulted for presuming that the written promise made by a member-state of the European Union can be trusted, but left itself exposed to a risk of default. Because the Italian ambassador enjoys diplomatic immunity, he cannot be charged in a criminal or civil suit—a norm which the Italian government abused in this case. The Court has limited options now.

The action has shifted to the geopolitical domain. As of this writing, reports indicated that New Delhi has decided to expel Ambassador Daniele Mancini. [See these storified tweets on the subject.]

Samanth Subramanian and Suryatapa Bhattacharya report this matter in The National where they quote me. My detailed responses were:

What sort of diplomatic fall out can we expect, if any?

The UPA government will be under pressure to react to what is clearly a breach of law, faith and norms of engagement between civilised states by the Italian government. The Indian Supreme Court went to the remarkable extent of letting the undertrial marines off for Christmas and voting based on the presumption of good faith. So New Delhi will have to act — although at this point it’s not clear to what extent the UPA government will go.

Do you think expelling the Italian diplomatic mission and recalling the Indian mission from Rome will send across the point that India’s judiciary and government is serious about prosecuting the two Italian marines accused of killing the fishermen?

It’s highly unlikely that the two marines will be sent back to India for trial. So what actions New Delhi takes — including expelling the ambassador and the military attache and downgrading bilateral relations — will essentially have signaling, punitive and deterrent value. New Delhi will have to signal that it will not let illegal actions by foreign governments go unpunished. It will then decide on how much it can and it should punish the Italian government. Finally, to the extent that setting an example dissuades others from treating the Indian judicial system with contempt, New Delhi’s response can act as a deterrent.

Mostly though, New Delhi’s actions will have a signaling value, with some degree of punitiveness.

Who should be held accountable for this breach of trust?

This is hard to answer. Clearly the Italian government is responsible for acting like a rogue state, not a civilised member of the international community. That said, it was unwise for the Indian government and Supreme Court to accept Rome’s bona fides because its leaders and officials have consistently demonstrated their contempt for the Indian judicial system right from the start. The Supreme Court allowed the marines to leave based on the word of the Italian ambassador, but surely the Union government’s counsel could have argued its case more strongly.

On NDTV’s The Social Network show last evening, I argued that this issue will affect bilateral ties and potentially even India-EU relations.

Europe’s failure with multi-ethnicity

Pratap Bhanu Mehta on Kosovo

Mr Mehta’s op-ed in the Indian Express is brilliant. (Not only because it echoes most of the points made on this blog. Well, that too!)

As Michael Mann, in an important article on the “Dark Side of Democracy” had noted, modern European history has built in an irrevocable drive towards ethnic homogenisation within the nation state.

In the 19th century, there was a memorable debate between John Stuart Mill and Lord Acton. John Stuart Mill had argued, in a text that was to become the bible for separatists all over, including Jinnah and Savarkar, that democracy functions best in a mono-ethnic societies. Lord Acton had replied that a consequence of this belief would be bloodletting and migration on an unprecedented scale; it was more important to secure liberal protections than link ethnicity to democracy. It was this link that Woodrow Wilson elevated to a simple-minded defence of self-determination. The result, as Mann demonstrated with great empirical rigour, was that European nation states, 150 years later, were far more ethnically homogenous than they were in the 19th century; most EU countries were more than 85 per cent mono-ethnic.

Most of this homogeneity was produced by horrendous violence, of which Milosevic’s marauding henchmen were only the latest incarnation. This homogeneity was complicated somewhat by migration from some former colonies. But very few nation states in Europe remained zones where indigenous multi-ethnicity could be accommodated. It is not an accident that states in Europe that still face the challenge of accommodating territorially concentrated multi-ethnicity are most worried about the Kosovo precedent. The EU is an extraordinary experiment in creating a new form of governance; but Europe’s failures with multi-ethnicity may yet be a harbinger of things to come. Kosovo acts as a profound reminder of the failure of the nation state in Europe. [IE]