The International Misrule of Law
NEW DELHI – On the face of it, China’s recent declaration of an air defense identification zone (ADIZ) extending to territories that it does not control has nothing in common with America’s arrest and strip-search of a New York-based Indian diplomat for allegedly underpaying a housekeeper she had brought with her from India. In fact, these episodes epitomize both powers’ unilateralist approach to international law. A just, rules-based global order has long been touted by powerful states as essential for international peace and security. Yet there is a long history of major powers flouting international law while using it against other states. The League of Nations failed because it could not punish or deter such behavior. Today, the United States and China serve as prime examples of a unilateralist approach to international relations, even as they aver support for strengthening global rules and institutions. Consider the US, which has refused to join key international treaties – for example, the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses (which has not yet entered into force), and the 1998 International Criminal Court Statute. Indeed, unilateralism remains the leitmotif of US foreign policy, and this is also reflected in its international interventions, whether cyber warfare and surveillance, drone attacks, or efforts to bring about regime change. Meanwhile, China’s growing geopolitical heft has led to muscle-flexing and territorial claims in Asia that disregard international norms. China rejects some of the same treaties that the US has declined to join, including the International Criminal Court Statute and the Convention on the Law of the Non-Navigational Uses of International Watercourses (the first law to establish rules on the shared resources of transnational rivers, lakes, and aquifers). Indeed, despite their geopolitical dissonance, the world’s most-powerful democracy and its most powerful autocracy have much in common when it comes to how they approach international law. For example, the precedent that the US set in a 1984 International Court of Justice (ICJ) case filed by Nicaragua still resonates in China, underscoring that might remains right in international relations. The ICJ held that America violated international law both by supporting the contras in their insurrection against the Nicaraguan government and by mining Nicaragua’s harbors. But the US prevented Nicaragua from obtaining any compensation by vetoing UN Security Council resolutions that called for enforcement of the ICJ’s judgment. China still hews to Mao Zedong’s belief that “power grows out of the barrel of a gun.” Indeed, while China ratified UNCLOS, it then reinterpreted the provisions to justify cartographic aggression in the South and East China Seas. Worse still, China has refused to accept the UNCLOS dispute-settlement mechanism, thereby remaining unfettered in altering facts on the ground. The Philippines has filed a complaint against China with the International Tribunal for the Law of the Sea. China, however, has simply refused to participate in the proceedings, as if it were above international law. Whatever the tribunal’s decision, China will simply shrug it off. Only the Security Council can enforce an international tribunal’s judgment on a noncompliant state. But China wields a veto there and will block enforcement of an adverse ruling, just as the US did in the Nicaragua case. China’s new ADIZ, while aimed at solidifying its claims to territories held by Japan and South Korea, is similarly provocative, because it extends to areas that China does not control, setting a dangerous precedent in international relations. Japan has asked its airlines to ignore China’s demand for advance notification of flights, even if they are merely transiting the new zone and not heading toward Chinese territorial airspace. By contrast, the US has advised American carriers to obey China’s prior-notification demand. There is a reason for this: Although the prior-notification rule in American policy applies only to aircraft headed for US national airspace, in practice the US demands advance notification of all flights through its ADIZ, regardless of their intended destination. If other countries emulated the example set by China and the US by establishing unilateral claims to international airspace, a dangerous situation would result. Binding international rules are thus imperative in order to ensure the safety of fast-growing commercial air traffic. But who is supposed to take the lead when China and the US have pursued a unilateralist approach on this issue? Now consider the case of the Indian diplomat, Devyani Khobragade, whose treatment India’s national security adviser called “despicable and barbaric.” True, as a consulate-based diplomat, Khobragade enjoyed only limited diplomatic immunity under the 1963 Vienna Convention on Consular Relations. But this convention guarantees freedom from detention until trial and conviction, except for “grave offenses.” Can a wage dispute qualify as a “grave offense” warranting arrest and humiliation? Would the US tolerate similar treatment of one of its consular officers? The harsh truth is that the US interprets the Vienna Convention restrictively at home but liberally overseas, in order to shield even the military and intelligence contractors that it sends abroad. A classic case involved the CIA contractor Raymond Davis, who fatally shot two men in 2011 in Lahore, Pakistan. Claiming that Davis was a bona fide diplomat with its Lahore consulate, and thus enjoyed immunity from prosecution, the US accused Pakistan of “illegally detaining” him, with President Barack Obama defending him as “our diplomat in Pakistan.” Despite a widely held belief that the current international system is based on rules, the fact is that major powers are rule makers and rule imposers, not rule takers. They have a propensity to violate or manipulate international law when it is in their interest to do so. If universal conformity to a rules-based international order still seems like a distant prospect, an important reason is that countries that should be leading the charge still so often behave like rogue states. Brahma Chellaney, Professor of Strategic Studies at the New Delhi-based Center for Policy Research, is the author of Asian Juggernaut, Water: Asia’s New Battleground, and Water, Peace, and War: Confronting the Global Water Crisis. Project Syndicate, 2013.