19 June 2018
Adam Ward (Commissioning Editor)Deputy Director, Chatham House
ISBN978 1 78413 285 9
A More Contested Space?
Ruma Mandal | Risk: Shifting power and international law
After decades of progressive development in international law, increasingly influential voices such as China are challenging the status quo. This has implications for human rights protection and development of the law in emerging areas.
International law flourished in the aftermath of the Cold War, broadening in scope, deepening in content and embracing a focus on individuals. While this period furthered many governance projects envisaged in the post-1945 settlement, shifting power and rising nationalism now suggest the arrival of a more difficult phase for international law.135 In the coming year (and beyond), areas of the law perceived by some as too liberal will be vulnerable to attack, and tensions will persist between key states on how the law applies to emerging global challenges.
The dynamics of international law are shifting. Countries that traditionally have led the way in shaping international law are ceding space, as a consequence of reduced global power, tarnished prestige and rising nationalist sentiment.136Meanwhile, countries such as China are increasingly engaged, recognizing the potential for the law to further their interests.137
This new phase does not amount to an existential crisis. Much of international law remains uncontested, facilitating the daily workings of an interconnected world;138and states continue to rely on the law to settle disputes peacefully.139 The continued legitimacy of international law in a multipolar world demands greater plurality.140 A degree of contestation is thus inherent and healthy in the law’s evolution – stability as opposed to stasis. Nonetheless, a degree of vigilance is justified on two principal grounds.
Countries that traditionally have led the way in shaping international law are ceding space, as a consequence of reduced global power, tarnished prestige and rising nationalist sentiment
Firstly, greater assertiveness on the part of states with a sovereigntist or transactional approach carries risks for areas of the law associated with progressive liberal values – for example, sexual and reproductive rights. The pushback on such rights is not confined to states from the Global South; the US and a number of European states are increasingly advocating illiberal values.141 Alongside this, China and many developing countries are likely to increase pressure for greater attention to economic rights. Progress on addressing inequalities through economic rights is long overdue. However, the risk remains that advocacy on economic rights can be used by some as cover for encouraging restrictive approaches to civil and political rights.
Secondly, in relation to emerging challenges for international law, achieving consensus may become increasingly complicated in the short term. Issues around cybersecurity governance are illustrative. A UN Group of Governmental Experts has failed to reach agreement on how international law applies to cyber operations by states, with a split emerging between Western countries on one side and China and Russia on the other. At present, prospects for convergence look slim.142
The extent to which these risks materialize will depend on the relative efforts made by key states. Will engagement by traditionally influential states in these vulnerable or emerging areas be strategic, addressing competing visions of the global order, in particular as advanced by China?143 And to what degree will such countries be able to maintain a coordinated approach? On the human rights side, the US will not be a consistent partner anytime soon for states wishing to defend ‘progressive’ rights. Meanwhile, the EU’s ability to wield collective influence is increasingly compromised by internal splits on values and by questioning of the EU’s own recent human rights record.144
Nevertheless, Western states can draw on considerable expertise in international law. And the opportunity for building issue-specific alliances among them and with states from the Global South exists.
Moreover, China is intent on being seen as a responsible power, seeking not to disrupt international law but to have a more influential role. The increasing visibility of non-state actors is also worth noting, for example in judgments of national courts which deal with international law, parliamentary enquiries into government compliance, academic initiatives and civil society advocacy.145
Ultimately, the longer view is perhaps instructive. International law is resilient, having in the past weathered numerous disruptions in global politics, intermittent antagonism from powerful states, and notable breaches. While complacency would be misguided, so is despair.
Ruma Mandal is head of the International Law Programme.
A Global Compact: What Difference Will it Make?
Jeff Crisp | Risk: International cooperation on refugees
Despite signs of a more concerted international response to the plight of refugees, obstacles to the provision of more meaningful protection for exiled populations loom large.
During the past five years, a combination of armed conflict, human rights abuses and violent extremism has uprooted millions of people in countries such as Myanmar, Nigeria, South Sudan and Syria. At the same time, long-standing conflicts in Afghanistan, the Democratic Republic of the Congo, Iraq and Somalia have gone unresolved. As a result, refugees from those states have been unable to return to their homes.
It seems highly unlikely that the refugee problem will diminish in the years to come. According to Rana Dasgupta, ‘For increasing numbers of people, our nations and the system of which they are a part now appear unable to offer a plausible, viable future.’146 More people will seek to move beyond the borders of their own country, a trend that will be reinforced by climate change and growing levels of inequality within and between states.
The humanitarian system has been placed under unbearable pressure by the mass displacement of people. Aid agencies are failing to raise the funds they need to support the world’s refugees.147 They lack the capacity to respond effectively to so many simultaneous crises. In many countries, the intense forms of violence that have uprooted so many people also make it impossible for relief organizations to assist the most vulnerable.
While the refugee issue is heavily concentrated in the Global South, displaced people are becoming more mobile and have demonstrated that they will keep moving until they reach a country that offers them a decent future. Thus, in 2015–16, more than a million refugees arrived in the EU,148 the largest number of them Syrians who felt it was impossible for them to fulfil that aspiration if they remained in Turkey.
As a result of these developments, the international community is now addressing the refugee issue in a more concerted manner than was previously the case, as demonstrated by the September 2016 UN Summit for Refugees and Migrants, its unanimous adoption of the New York Declaration for Refugees and Migrants, and the forthcoming Global Compact on Refugees – set to be presented to the UN General Assembly in late 2018.
As UNHCR, the UN Refugee Agency, has suggested, these initiatives have the potential to be a ‘game changer’.149 They provide states with an opportunity to reaffirm the basic principles of refugee protection. They could lead to a more equitable distribution of the burden imposed by the world’s refugees. And they promise to complement the traditional model of emergency assistance with longer-term and developmental approaches that also bring benefits to host populations.
But the current international environment is also replete with risks. The US has already signalled an intention to abandon its long-standing leadership role in refugee affairs. And there is no guarantee that other countries will restore the cuts to funding and refugee resettlement places initiated by the Trump administration.150
Another risk is that industrialized states that have signed up to the New York Declaration and Global Compact will simply ignore the principles included in those non-binding documents, using ever more ingenious means of excluding asylum-seekers from their territory. At the same time, overseas aid and other foreign policy instruments will be increasingly used not to reduce poverty and promote development, but to contain people within their own regions.
As the EU’s recent ‘migration management’ deals with Turkey and Libya have demonstrated, this approach is certain to entail the violation of refugee rights.151 It will also encourage developing countries to close their borders to refugees and to promote premature repatriation movements, as has recently been seen in Kenya and Lebanon. As a result, many vulnerable people will be deprived of their right ‘to seek and to enjoy in other countries asylum from persecution’.7152
Looking to the future, three variables will influence the international community’s response to the refugee issue:
The first is the extent to which new emergencies can be averted and existing refugee situations resolved. If states and citizens continue to feel that the problem of forced displacement is out of their control, the more likely it is that governments will resort to restrictive asylum policies.
The second variable is the level of support that can be mobilized for host countries in the developing world. Without tangible recognition of their hospitality, such states will be sorely tempted to ignore any protection principles that are enshrined in the Global Compact.
The third variable is political leadership. With the current US government a lost cause in the refugee domain, it will be incumbent on other states – Canada, Germany, Ethiopia and Uganda among the most influential – to set a positive example in the treatment of displaced populations.
Jeff Crisp is an associate fellow with the International Law Programme.
‘Belt and Road’ – Encouraging China to Play by International Rules
Harriet Moynihan | Opportunity:Engagement with China on human rights
The ‘Belt and Road Initiative’ provides a new entry point for engaging China constructively on human rights issues, particularly economic and social rights.
Western efforts over the years to pressure China over its human rights record have almost invariably been rebuffed, typically prompting Beijing to dismiss criticisms as interference in its domestic affairs. But China’s increasingly global economic footprint and aspirations for recognition as a responsible international power offer the prospect of some change in this area. Cross-border cooperation on the ‘Belt and Road Initiative’ (BRI) may require China to comply more willingly with international rules and norms while accepting stricter contractual commitments in jurisdictions outside its own territory. On the early evidence so far, this could open the way for stronger human rights protections – for example on labour rights and the environment – to be written into China’s free-trade agreements (FTAs) and infrastructure investments.
A flagship programme for the Chinese leadership, the BRI consists of a sprawling network of planned capital projects in transport, trade and other economic infrastructure in dozens of countries across Asia, Central Asia and beyond.153 The initiative is designed to improve overland and maritime trade links between China and the rest of the world, and is also an outlet for the increasingly outward-looking investment strategies of Chinese companies.
The BRI could support the proposition that China has a larger role to play in global governance, and allow China to strengthen its positioning of itself as a responsible global power
There are several reasons to believe that China might accommodate certain human rights and other standards in its BRI agreements. The first is that partners may demand it. In May 2017, for example, the EU refused to sign a joint statement on the BRI because the MoU did not include reference to transparency and sustainability.154 More broadly, the EU and the US (at least, until the Trump administration) have been pushing for the inclusion of provisions on labour, the environment and sustainability in their FTAs and mega-regional trade agreements. Increasingly, such provisions are perceived as the gold standard in trade deals, putting China under pressure to include them in its own FTAs (although it is more open to the inclusion of environmental protections than those on labour rights).155
The second reason is that this plays into the leadership’s soft power agenda. By showing more flexibility in China’s approach to human rights, the BRI could support the proposition that China has a larger role to play in global governance, and allow China to strengthen its positioning of itself as a responsible global power. It could indirectly support the impression that China sees value in upholding other rights internationally, and in cooperating on global issues such as climate change. It could also help the government to repair reputational damage arising from incidents such as the Myanmar government’s suspension of the Myitsone Dam project in 2011 because of concerns including environmental impact; and from allegations of abuse of workers and forcible displacement in certain Chinese projects in Latin America and Africa.
Third, discussion of human rights presents less of a risk to the legitimacy of China’s Communist Party in an international context, i.e. in relation to projects outside the territory of China, than addressing these issues would do in the domestic domain. In addition, the rights involved in business projects – such as labour, health and the environment – are social and economic rights, which fit more naturally within China’s conception of human rights than do civil and political rights, and thus do not constitute such sensitive terrain for the Chinese government.
Discussion of human rights presents less of a risk to the legitimacy of China’s Communist Party in an international context than addressing these issues would do in the domestic domain
There are risks that some BRI projects will carry significant social, environmental and other costs, especially if the Chinese corporate entities involved are poorly regulated and put profits above everything else. But there is a role for China’s foreign investment partners to raise awareness of social and environmental risks, and to insist that in both investment contracts and their implementation, international standards are adhered to – for the good of the reputation of the BRI and the ‘China dream’, if nothing else. Encouraging the Chinese government to finance projects though the Asian Infrastructure Investment Bank (AIIB) – which is generally acknowledged to have high standards of governance – offers one way of maximizing the chances that projects will be governed by standards in tune with the rules-based international system. Subjecting disputes arising from BRI projects to settlement through a multilateral mechanism such as the permanent multilateral investment court proposed by the EU,156 or perhaps a bespoke AIIB dispute settlement mechanism, could also encourage adherence to international standards, as well as offering greater transparency than the usual ad hoc arbitration arrangements. By contrast, if China chooses to pursue its BRI projects through purely Chinese institutions, and through channels subject to Chinese law and the jurisdiction of Chinese courts, the ability of partners to push for human rights, transparency and accountability standards is likely to be reduced.
Western governments and corporate actors do not have an unblemished record themselves when it comes to business and human rights. But some actors with whom China is keen to do business, including the EU and certain Western governments and companies, have for some time been engaging substantively on these issues, recognizing the longer-term benefits of corporate social responsibility, including environmental sustainability and fair treatment of workers. The BRI offers a real opportunity for prospective partners to engage a range of Chinese actors in peer-to-peer exchange on these issues, and to help shape their conduct in the course of securing mutually beneficial cooperation.
Harriet Moynihan is an associate fellow with the International Law Programme.
Channels of Cooperation
Gareth Price | Opportunity:Disaster warning in South Asia
Shared natural disaster warning systems offer a politically uncontentious means of cross-border cooperation – and conceivably a future route to improved India–Pakistan relations.
South Asia is one of the most disaster-prone regions on Earth.157 Not only do floods, droughts, cyclones and earthquakes cost lives and undermine development on a regular basis, but the intensity and frequency of adverse weather events appear to be increasing as a likely result of climate change. Disasters do not respect national borders. Because of this, however, there is growing recognition among politicians and policymakers – rhetorically at least – that disaster management offers scope for regional collaboration.
Such cooperation is in short supply in the least connected region of the world. Intra-regional trade, for instance, accounts for less than 5 per cent of South Asia’s total trade. This compares with 35 per cent of trade in East Asia that is intra-regional, and 60 per cent in Europe. Explanations for this are manifold. India–Pakistan tensions are but one element. The size differential between India and other neighbours is also a factor. It makes those countries keen to differentiate themselves from India – genuine fears of being unable to compete with it accentuate the desire to demonstrate sovereignty.
Bangladesh and several of India’s more progressive (and disaster-prone) states have made disaster management central to their developmental objectives
Disasters, paradoxically, offer one of the best entry points for greater regional cooperation. Last year the South Asian Association for Regional Cooperation (SAARC) established a disaster management centre in Gujarat, the home state of India’s prime minister, Narendra Modi. India’s current favoured alternative to SAARC is the Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC) – a regional grouping that includes Myanmar and Thailand, but excludes Pakistan. In an attempt to reinvigorate this 20-year-old grouping, which has few achievements to speak of, a disaster management exercise was held late last year in Delhi.
Some regional cooperation has already taken place following disasters. After the 2015 Nepal earthquake, India played a role as ‘first responder’. A decade earlier, India and Pakistan opened various border crossings as a means of assisting relief efforts after the Kashmir earthquake, which affected both countries158 (although in this case the proposed use of cross-border response teams proved a step too far).
Bangladesh159 and several of India’s more progressive (and disaster-prone) states, notably Orissa, have made disaster management central to their developmental objectives. The construction of shelters and the development of large-scale evacuation capabilities mean that cyclones which would once have killed tens of thousands of people can now be ‘managed’, and that casualties from such events have fallen dramatically. This has had a positive impact beyond disaster management: the need to facilitate evacuation has been used to justify regular developmental activities such as road construction. The wider implications of disaster response are also illustrated by the fact that Bangladesh itself was born, in part, out of a failure by the Pakistani authorities to deal with Cyclone Bhola, which in 1970 killed around 500,000 people.160
While there is plenty of scope for shared response and indeed shared learning, a further opportunity exists to develop shared warning systems, at least for meteorological events. Annual monsoon flooding in India and Bangladesh often stems from rainfall upstream, particularly in Nepal. Various initiatives are under way to try to develop regional systems for flood warnings. These are based on various data points, including water levels in rivers and precipitation forecasts. New technologies are facilitating more accurate warnings, while the rapid spread of mobile phones enables – for the first time – an easy means of ensuring that warnings reach vulnerable communities. However, there are concerns that climate change may mean that warnings based on historical data could be redundant as the intensity of rainfall increases.
This shift from interpreting disasters as unforeseeable acts of God towards treating them as events that can be prepared for is positive, though for several reasons the shift remains less than substantive. First, most budgets associated with disasters are still earmarked for response rather than preparedness. These budgets have historically proven susceptible to corruption and political patronage, with beneficiaries of post-disaster relief often chosen for political reasons rather than on the basis of need.
Second, vital components of preparedness – such as efforts to improve building regulations – remain meaningless for those South Asians who do not yet live in brick houses; this cohort includes one-third of rural Indians. For some disasters, even if warnings reach the intended audience, vulnerable communities lack the means of taking precautionary measures. For instance, in May 2018 dust storms were forecast across north India; advice on precautionary measures was widely published in newspapers. Despite the warnings, around 100 people died as electricity pylons collapsed and trees were uprooted.
Floods are one of the most common types of disaster in South Asia, yet attention to the problem is uneven. The 2010 floods in Pakistan garnered international coverage, as they affected 20 million people and submerged almost 70,000 sq km of land. In contrast, annual monsoon-related floods are generally less newsworthy. Just last year, one-third of Bangladesh lay underwater, while every year the Indian states of Uttar Pradesh, Bihar and Assam are inundated by various tributaries of the Ganges and by the Brahmaputra.
New technologies are facilitating more accurate flood warnings, while the rapid spread of mobile phones enables – for the first time – an easy means of ensuring that warnings reach vulnerable communities
Various initiatives are under way to provide vulnerable communities with a few hours’ warning of impending floods.161 While this may not be much, it enables residents to collect vital possessions and ensure their own safety. Ideally, these warnings would be formalized into governmental and intergovernmental systems. Concerns over sovereignty mean that each country wishes to maintain its own systems. Nonetheless, if any issue cries out for regional engagement, it is the need for shared responses to weather.
If such systems were to be formalized, this would likely occur within the ‘BBIN’ grouping of Bangladesh, Bhutan, India and Nepal. Wider geopolitical gains could then be imagined. Idealistic perhaps as it may sound, effective BBIN cooperation could even form a template for increased future Indian interaction with its upstream neighbour, China, from where flows the Brahmaputra, and with its downstream one, Pakistan, into which flow various Indian tributaries of the Indus.
Chatham House research a few years ago highlighted the extent to which South Asia’s water was conceived in a zero-sum manner – rivers that flowed out of a country were seen as lost to the downstream neighbour. Our research argued that rivers in the region needed to be reconceived and that South Asia’s rivers needed to be conceptualized in terms of their potential uses.162 Since then, India has started using its waterways for navigation, and is extending navigational uses of rivers into Bangladesh and Nepal. Energy – often from hydropower – is also now traded between the BBIN countries. An effective regional meteorological service may sound niche, but could provide another small building block for establishing political trust.
Gareth Price is a senior research fellow with the Asia-Pacific Programme.
Assessing and Addressing Gaps in Outbreak Control Capacity
David L. Heymann, Emma Ross and Osman Dar | Opportunity:Improved health emergency detection and response
A new approach to assessing country capacities for control of outbreaks and other public health emergencies provides a clearer picture of vulnerabilities, and costed roadmaps to better health security.
In 2005, the International Health Regulations (IHR) were updated with a new requirement for countries to develop, by 2012, certain capacities for detecting and responding to infectious disease threats and to report their progress.163However, after the 2014 Ebola outbreak highlighted the lack of compliance and weaknesses of self-reporting, a new approach was introduced whereby countries opt for an external evaluation of such capacities by a team of international experts coordinated by the World Health Organization (WHO).164 These international and regional evaluations are not only revealing the true state of public health systems, but are also leading to costed national action plans to address gaps. The process is bringing a level of coordination between sectors rarely seen before, along with opportunities for holding governments and donors more accountable for investments in health security.
The first major infectious disease outbreak that spread internationally in the 21st century – Severe Acute Respiratory Syndrome (SARS) – affected industrialized countries on all continents. It clearly demonstrated to political leaders that outbreaks are not only a health risk for low-income countries, but also threats to human health everywhere; and that they cause economic disruption wherever they spread.165 This was reinforced over the ensuing decade, when the 2009 Swine Flu and, to a lesser extent, the 2014 West African Ebola outbreaks spread to industrialized countries in Europe and North America. These events have given rise to better understanding of global health security, and to key efforts to strengthen it.
The international spread of deadly outbreaks of plague, smallpox, cholera and yellow fever in past millennia has in many ways shaped the course of history. Formalized international cooperation to curtail their spread began in the mid-19th century in a series of conventions and treaties between European countries and what was then known as the New World. In 1969 WHO turned these instruments into the IHR.166
The IHR were conceived as a framework for coordinated national reporting of these four diseases. The regulations prescribed predetermined actions at borders aimed at preventing the spread of these diseases across national boundaries, such as requiring travellers to provide evidence of yellow fever vaccination. The 2005 revision of the IHR was based on the understanding that there were more than the four IHR-named diseases that had the potential to spread internationally; that SARS had crossed borders in international travellers before symptoms had appeared; and that there was no vaccine that could have been used to prevent infection. The revision added a requirement that all countries develop core capacities in public health, thus changing the emphasis of the regulations to strong national capacity for disease detection and response when and where outbreaks occur. The focus of the IHR is now on national public health capacity, not control at borders.
The revised IHR require all countries to regularly report to WHO with their own assessment of their public health capacities. But some countries do not report, and others report optimistically on capacities that do not bear up in practice.
In 2016, a group of like-minded countries and international organizations therefore joined with WHO to develop a system of external evaluations of public health capacity on a voluntary basis. The Joint External Evaluation (JEE) is a collaborative multisectoral process that is initiated by individual countries. It involves an initial national self-assessment using the JEE tool, and a visit by a team of international experts coordinated by WHO to convene the necessary sectors and analyse the situation using a standardized approach. This is followed by a WHO-supported cross-sectoral process to develop a costed National Action Plan for Health Security, based on the findings of the evaluation.167The vision is for implementation of the plans to be periodically monitored.
Prospects for wider uptake of the JEE process are good if it can be demonstrated that the action plans are being adequately resourced and are addressing country-led rather than donor priorities, and as long as data sharing remains voluntary
As of 31 May 2018, 76 countries had completed these evaluations, and another 21 had scheduled them for later this year or early 2019.168 Twenty-six countries had completed their national planning exercise, mostly within the past year, and planning was under active development or intended in another 28 countries. The JEE process provides a rare opportunity for countries to evaluate and plan systematically to improve their public health systems, harmonizing across sectors such as health, veterinary, environment, security and finance, both within each country and regionally. It provides a means for countries to target their resources efficiently. It also provides a basis for donors to direct their investments to exactly where these are needed most, and affords greater transparency regarding whether donors are investing in JEE-identified priorities or not.
Funding is a challenge in the development and execution of the action plans. WHO has just embarked on an effort to map resources in specific countries, but it is clear that some countries will be unable to fully fund implementation. For those that can afford it, one of the key tests of future commitment will be whether states allocate the national budget necessary to fund their action plans. Those that cannot will need aid. Some development agencies have indicated that they intend to link funding to the JEE by targeting projects identified as priorities in the action plans, and that they intend to judge the success of their investment on the basis of scores in follow-up monitoring. This may be an incentive for countries seeking development funding to undertake a JEE.
Prospects for wider uptake of the JEE process are good if it can be demonstrated that the action plans are being adequately resourced and are addressing country-led rather than donor priorities, and as long as data sharing remains voluntary. A risk to its success is the view of a few countries that it serves a Western security agenda aiming to gather data and protect rich countries from outbreaks originating in low-income countries; and that areas prioritized for action and investment are likely to focus more on monitoring emerging pathogens and stopping the international spread of disease than on preventing or controlling it within a nation. Another fear is that the results might be used like scorecards to rank countries.
A sense of country ownership over the process, country confidence that there will be the resources to implement the vision set out in the action plans, and the targeting of donor funds towards the priorities set by the countries will be critical to realizing this opportunity.
David L. Heymann is the head of, and a senior fellow with, the Centre on Global Health Security (CGHS). Emma Ross is a senior consulting fellow with CGHS. Osman Dar is the project director of CGHS’s One Health project.