Freedom Rules

NATO hegemonic formula, Ukraine effect on world order, unveiling Ukraine war reality, Western distraction from Climate Change, USA Freedom of Navigation is not International Law

UPDATE:?Military alliances, by definition, are an agreement on the use of force against a rival. As well as offering a framework for collective defence, and thus for coercive diplomacy, they may also serve as pacts of restraint, through which a strong power manages its weaker allies, potential adversaries seek conciliation or contracting parties pledge mutual forbearance.?

The Russian invasion of Ukraine has sharpened the commitment of Western governments to a liberal vision of international order. But it is a different story elsewhere. Many countries, particularly in the Global South, regard the rules-based order as an artificial Western construct, and the Ukraine war as a matter of geopolitics rather than norms and principles.

After 15 months of conflict, The New Yorker’s reportage by Luke Mogelson and photographer?Maxim Dondyuk shows us the war in?Ukraine?that the?propaganda machine has been concealing.?

It should be common knowledge by now that climate change is a complex problem with outsize consequences for the Global South. By 2030, most Small Island Developing States (SIDS) will lose up to 100% of their GDP to climate disasters. Similarly, Africa’s 54 countries will suffer some of the worst consequences of a warming planet, even though they are least responsible for the crisis, contributing less than 4% of global greenhouse-gas (GHG) emissions.

“Freedom of navigation” is a core claim of the U.S. maritime order and has been used to accuse and suppress China's maritime activities. Recently, the U.S. Embassy to China published an article on the U.S. position on the history and connotation of “FON” as a standard to the principle of “freedom of navigation” in international law. In fact, the “FON” pursued by the United States and the “FON” recognized by international law are not the same thing at all.

Weapon of Power, Matrix of Management

NATO’s Hegemonic Formula

By Grey Anderson

Military alliances, by definition, are an agreement on the use of force against a rival. But this is not their only, or even primary role. Ensuring internal order, encouraging commerce and disseminating ideology are additional alliance activities, far from exhaustive. As well as offering a framework for collective defence, and thus for coercive diplomacy, they may also serve as pacts of restraint, through which a strong power manages its weaker allies, potential adversaries seek conciliation or contracting parties pledge mutual forbearance. Since its inception in 1949, nato has assumed all of these functions; each, however, has not been equal in significance, and their relative weight has shifted with time.

From the beginning, the architects of the North Atlantic Treaty were under few illusions as to the military utility of their compact. In the unlikely event of a Soviet offensive on Western Europe, a handful of under-armed American divisions could not be counted on to turn the tide. With the militarization of the alliance at the turn of the 1950s (acquiring its ‘organization’ and integrated command as Chinese troops crossed the Yalu), the forces at the disposal of the Supreme Allied Commander Europe (saceur) grew more formidable—by the middle of the decade, equipped with 280mm M65 atomic cannon—but schemes to mount a defence at the Fulda Gap or on the North German plains were always far-fetched and recognized as such. Of greater concern, in the immediate postwar years, was the enemy at home. European leaders looked to nato as a bulwark against internal subversion as much as against the Red Army. Such considerations illuminate a further dimension of the alliance. For propagandists then as now, its mandate extended to ‘values’ as well as security. Did the 1949 Treaty not engage signatories not only to ‘maintain the security of the North Atlantic area’ above the Tropic of Cancer but also ‘to safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law’?

Read full article?here .

The Ukraine effect: demise or rebirth of the global order?

By Bobo Lo

The Russian invasion of Ukraine has sharpened the commitment of Western governments to a liberal vision of international order. But it is a different story elsewhere. Many countries, particularly in the Global South, regard the rules-based order as an artificial Western construct, and the Ukraine war as a matter of geopolitics rather than norms and principles.

Events in Ukraine have reinforced Washington’s views about two competing visions of global order — one democratic, the other autocratic. However, such binarism has little resonance beyond the West. For the Global South, the divide that matters is with the Global North. This is not only about relative influence and status in the international system, but also diverging priorities.

A rules-based international order is achievable, but not as commonly imagined in the West. The post-Cold War template of unalloyed US global leadership and Western-dominated institutions is no longer tenable. The only viable order is one that is more inclusive and representative, reflecting a world where power is increasingly diffuse, and global cooperation is critical in meeting threats such as climate change and human insecurity.

The world is facing a Zeitenwende: an epochal tectonic shift. Russia’s war of aggression against Ukraine has put an end to an era. New powers have emerged or re-emerged, including an economically strong and politically assertive China. In this new multipolar world, different countries and models of government are competing for power and influence.

Olaf Scholz, Chancellor of Germany [1]?none

Viewed from Western capitals, Russian President Vladimir Putin’s invasion of Ukraine is the most consequential event in world affairs since the fall of the Soviet Union in December 1991. On its outcome hang the survival of Ukraine as a sovereign state, the future of European security, the credibility of the West, and the preservation of the rules-based international order.

Against this polarised backdrop, I want to address two broad questions. First, what has been the impact of the Ukraine war on global order? Does it amount to a real game changer, as Scholz and other Western leaders claim, or is it more a reflection of existing trends — the steady erosion of international norms, escalating great power tensions, and global fragmentation?

The Ukraine war is a globally significant event that will exert a lasting influence on the shape of international order.

Second, what is the future of international order? Does Putin’s war herald an age of anarchy or has it, paradoxically, strengthened the case for order by reminding us of what the world stands to lose by its absence? This, in turn, raises the question of what kind of order we have in mind. Are we witnessing a resurgence of the post-Cold War, US-led model — the “rules-based international order” as understood in the West? Or is global governance undergoing a transformation, reflecting the profound shifts in power that have occurred over the past decade, in particular the rise of China and the growing influence of the Global South?

Read full article?here .

The War We’re Finally Allowed to See

By Patrick Lawrence

After 15 months of conflict, The New Yorker’s reportage by Luke Mogelson and photographer?Maxim Dondyuk shows us the war in?Ukraine?that the?propaganda machine has been concealing.??Let us consider the following paragraphs, which appear in the May 29 edition of The New Yorker:??

“While Tynda and his team were fighting from the trench, long and powerful fusillades had issued from another Ukrainian position, on a hilltop behind them. I later went there with Tynda. In a blind overlooking the no man’s land stood an improbably antique contraption on iron wheels: a Maxim gun, the first fully automatic weapon ever made. Although this particular model dated from 1945, it was virtually identical to the original version, which was invented in 1884: a knobbed crank handle, wooden grips, a lidded compartment for adding cold water or snow when the barrel overheated….?

“In the course of the past year, the U.S. has furnished Ukraine with more than thirty-five billion dollars in security assistance. Why, given the American largesse, had the 28th Brigade resorted to such a museum piece? A lot of equipment has been damaged or destroyed on the battlefield. At the same time, Ukraine appears to have forgone refitting debilitated units in order to stockpile for a large-scale offensive that is meant to take place later this spring. At least eight new brigades have been formed from scratch to spearhead the campaign. While these units have been receiving weapons, tanks, and training from the U.S. and Europe, veteran brigades like the 28th have had to hold the line with the dregs of a critically depleted arsenal.”

The piece , from which this passage is drawn, carries the headline, “Two Weeks at the Front in Ukraine” and is the work of Luke Mogelson, a magazine correspondent of a dozen or so years’ experience.

Mogelson’s text is accompanied by the photographs of Maxim Dondyuk, a Ukrainian of roughly Mogelson’s age, either side of 40, whose work focuses on history and memory, topics that suggest a lot of thought goes into those 1/1000ths of a second when Dondyuk clicks his shutter.???

There are many things to think about and say as we read this piece. I will shortly have more to say about the excellence of Mogelson’s text and Dondyuk’s photographs. For now, the first thing to note is that, after 15 months of conflict, their work suggests Western media may at last begin to cover the Ukraine war properly.

I will stay with the conditional verb for now, but this could mark a significant turn not only for the profession — which could use a significant turn, heaven knows — but also in public support for the U.S.–NATO proxy war against the Russian Federation.?

As astute readers will already know, apart from a few staged forays near the front lines — officially controlled and monitored, never at the front lines — correspondents from?The New York Times, the other big dailies, the wire services, and the broadcast networks have accepted without protest the Kiev regime’s refusal to allow them to see the war as it is.

Content these professional slovens have been to sit in Kiev hotel rooms and file stories based on the regime’s transparently unreliable accounts of events, all the while pretending their stories are properly reported and factual.

Read full article?here .

Western Distraction from Climate Action

By Ali Rashid Al Nuaimi

It should be common knowledge by now that climate change is a complex problem with outsize consequences for the Global South. By 2030, most Small Island Developing States (SIDS) will lose up to?100% of their GDP ?to climate disasters. Similarly, Africa’s 54 countries will suffer some of the worst consequences of a warming planet, even though they are least responsible for the crisis, contributing?less than 4% ?of global greenhouse-gas (GHG) emissions.

Rising temperatures are likewise threatening life in the Arab world, resulting in water scarcity in Jordan and extreme heat waves in the Gulf countries. The need for a great transformation at the regional, as well as the global, level was one of the main reasons why Egypt hosted last year’s United Nations Climate Change Conference (COP27), and why the United Arab Emirates will host this year’s meeting. In preparation for COP28, which will convene in Dubai in November and December, the UAE has committed to engaging in open and honest discussions with everyone to ensure that the conference is a success.

Building on its strategic decision to promote and invest in renewables, conservation, and climate technology, the UAE selected?Sultan Al Jaber ?as the COP28 president-designate. The choice has received ample attention: in addition to being the chairman of Masdar – the world’s first carbon-neutral city and home to the International Renewable Energy Agency – and the minister of industry and advanced technology, Al Jaber is managing director and group CEO of Abu Dhabi National Oil Company.

Accelerating climate action, meeting the challenges of the energy transition, and maintaining the world’s demand for oil must be addressed comprehensively. Recognizing this reality, the UAE has chosen as its official to oversee talks someone who has extensive experience in renewable-energy projects, as a special envoy for climate change, and in positions responsible for reducing industrial emissions. Global warming is a complicated problem, and solving it calls for sophisticated solutions requiring the expertise of specialists in a wide variety of fields.

A small but loud group of politicians in the United States and Europe, together with some activists, have questioned why an “oil executive” is leading COP28. Many of these policymakers insist on reducing climate negotiations to a zero-sum game. By distracting people from the challenge of implementing realistic climate solutions and focusing instead on Al Jaber’s appointment, they seem to view the fight against global warming as a political stick to wield, rather than a global imperative that requires close collaboration.

Last week, members of the US Congress and the European Parliament?sent ?a letter to US President Joe Biden, European Commission President?Ursula von der Leyen , and UN Secretary-General?António Guterres ?urging the removal of Al Jaber as COP28 president-designate. Their demand was not based on any wrongdoing or a lack of commitment to the role, but rather was a means to score political points at the expense of a united global effort to tackle climate change and maintain economic growth.

Legislators should ensure the best possible outcomes for their constituents and their children, not embrace positions based on political biases without any effort at genuine engagement. Worse still, the US and European legislators are advocating international intervention in a sovereign decision – the latest in a long line of Western efforts to dictate to Global South governments for domestic political gain.

Read full article?here .

Not Freedom of Navigation

By Lei Xiaolu

(Excerpts)

“Freedom of navigation” is a core claim of the U.S. maritime order and has been used to accuse and suppress China's maritime activities. Recently, the U.S. Embassy to China published an article on the U.S. position on the history and connotation of “FON” as a standard to the principle of “freedom of navigation” in international law. In fact, the “FON” pursued by the United States and the “FON” recognized by international law are not the same thing at all.

The right of navigation and its limitations under the United Nations Convention on the Law of the Sea and general international law

There is a fundamental difference between the freedom of navigation claimed by the United States and the real freedom of navigation under international law. According to the U.S. Embassy?article , freedom of navigation is the right of its ships and aircraft to navigate and overfly in so-called “international waters” and innocent passage in the territorial waters of coastal states “without unlawful restrictions by States.” According to?Asia-Pacific Maritime Security Strategy: Achieving U.S. National Security Objectives in a Changing Environment ?by the Department of Defense in 2015, freedom of the seas means not only freedom of passage for merchant ships, but also the use of air and sea by military vessels and aircraft.

Although the concept of “freedom of the seas” has an ancient history, the rules of international law governing navigation have changed significantly with the development of the international law of the sea, particularly with the?conclusion?of the United Nations Convention on the Law of the Sea (hereinafter referred to as “the Convention”). Despite the best efforts of the United States to unite with its allies in negotiations to maintain the so-called freedom of navigation?in?traditional ways, the Convention ultimately aims to maintain a balance between the interests of maritime powers and coastal states. There has never been an unrestricted right of navigation in the Convention or in general international law.

The disagreement between the United States and China is not about whether other states have navigational rights in the various maritime areas, but rather about the extent to which navigational and other rights can be enjoyed and exercised, specifically, what constitutes an “unlawful restriction” on the navigational rights of coastal states.

There has never been an unrestricted right of navigation in the Convention or in general international law.

U.S. national and military strategy requires that its warships, aircraft, and submarines have unimpeded passage through the world's vital seas, straits, archipelagic sea lanes, and the territorial and archipelagic waters of archipelagic states, more precisely,?“it is in the best interests of both coastal and maritime States that the coastal state not be faced with a decision as to whether or not to permit transits”.?In 1986, when U.S. aircraft passed through the Strait of Gibraltar for military operations against Libya, neither Spain nor Morocco, as coastal states, were asked for consent for U.S. aircraft to fly over their territorial waters within the Strait. Thus, what the United States insisted upon and pursued was a right of unimpeded transit passage without the consent, or any reaction from the coastal states.

Article 25 of the Convention provides that the coastal state may take the necessary steps to prevent passage which is not innocent.?

This position, is clearly not fully supported by the Convention. Although foreign ships enjoy the right of innocent passage in the territorial sea, Article 25 of the Convention provides that the coastal state may take the necessary steps to prevent passage which is not innocent. That is, the coastal States have the right to decide whether the passage of a foreign ship is consistent with the “right of innocent passage” under Article 19. The?Convention ?also provides that the coastal State may adopt domestic law on innocent passage and may require a foreign warship that disregards any?request for compliance with domestic law to leave the territorial sea immediately. The Convention does not specify what steps and measures a coastal state may take or how a coastal state may “require” a foreign warship to leave its territorial seas. The practice varies from State to State. There is clearly no right of navigation in the territorial seas of a coastal state that ignores its decisions. U.S. warships may exercise the right of innocent passage, but at the same time must respect the coastal state's determination of whether the passage is innocent and comply with the laws and regulations of the?coastal State concerning passage through the territorial sea.

The right of navigation is not unrestricted in waters beyond the territorial sea. The United States argues that the freedom of navigation of the high seas is applicable beyond the territorial sea, and thus created the concept of “international waters”, which seems to express a meaning similar to the concept of “international airspace” in international law. However, unlike international law concerning airspace, the Convention categorized the ocean into different maritime zones, such as internal waters, territorial sea, contiguous zone, exclusive economic zone, continental shelf, high seas and the Area, and the rights and obligations of states varies.

The United States upholds that the exclusive economic zone (hereinafter referred to as “EEZ”), and the continental shelf only entitles the coastal state sovereign rights and jurisdiction related to the use of natural resources. In practice, however, the exercise of navigational rights in the EEZ should also take the obligation of “due regard” under Article 58 into account. Article 58 does not specify which kind of interests need to be “due regard”. During the negotiation of the Convention, the issue of the limits and legality of military activities in the EEZ was discussed, and concerns regarding the security interests of coastal States were raised by Peru, Brazil, Uruguay and others.[5]?Until now, there is no consistent state practice among states on this issue. But at least, the right of navigation in the EEZ is limited by the jurisdiction of the coastal state regarding natural resources and marine environmental protection.

The Convention also provides the regime of the straits used for international navigation and archipelagic sea lanes. All these regimes reflect the delicate balance between the sovereignty, sovereign rights and jurisdiction of the coastal State and the interests of navigation of other States. On the one hand, it guarantees the right of navigation, and on the other, it maintains the space for coastal states to take measures to safeguard their national security. Although President Ronald Reagan?stated ?in 1983 that the United States “prepared to accept and act in accordance with the balance of interests relating to traditional uses of the oceans—such as navigation and overflight”,[6]?the balance of interests as understood by the United States may differ from the understanding of state parties to the Convention.

The United States is not a party to the Convention. In accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties, subsequent practice of the parties is to be considered when interpreting the Convention. That is, the Convention is likely to evolve in accordance with the subsequent practice of the Parties. But as a non-party to the Convention, the practice of the United States means nothing for the interpretation of the Convention. The United States has repeatedly asserted that the Convention reflects customary international law in the 1980s, but if the customary international law develops with different state practice, it might be inconsistent with the living Convention.

Therefore, if the United States wants to preserve its navigational interests, forcing its position through unilateral acts is not the best option. It must face up to and respect the space reserved by the Convention for coastal States to maintain their national security and resolve the relevant issues with the States concerned through bilateral or multilateral legal arrangements.

The U.S. Seventh Fleet, from 2015-2022, a total of 39 “FON operations”, or FONOPS, have been conducted?against China around the islands and reefs?in the South China Sea. More importantly, unlike other “FONOPS”, U.S. “FONOPS” near islands and reefs in the South China Sea are more politically and strategically provocative.

The United States does not usually release details of its “FON program”, but since 2015, the U.S. has taken the initiative to disclose the vessels and details of its “FONOPS” in response to the legal status of the islands and reefs in the South China Sea. Almost every operation is closely aligned with important U.S. policies and issues related to the sea and China. According to?scholarly statistics , of the 39 “FONOPS” in the South China Sea from 2015 to 2022, at least 22 were related to U.S. China-related and maritime-related policy trends, mainly involving the construction of the Nansha islands and reefs, the South China Sea arbitration case, and the consultations for a “Code of Conduct for the South China Sea”.

It can be seen that the U.S. “FONOPS” have nothing to do with maintaining the safety of international waterways and the prosperity of maritime trade, as they are touted, but are akin to military activities to advance U.S. global strategy and safeguard U.S. security interests. It has nothing to do with international law, and is actually a domestic system design and practice created by the United States outside the Convention mechanism.

The Rules-based Maritime Order as Unilateral U.S. Hegemonic Tools

The U.S. has repeatedly explained the historical and practical roots of its unwavering defense of freedom of navigation, and in fact this logic has been very clearly shown to the world: the U.S. national interests depend on a liberal international order, and therefore it will spare no effort to promote this international order, including the so-called freedom of navigation. The?United States sees this as a common interest of the world, seeking to establish and maintain a “rules-based maritime order” with like-minded countries.

In fact, the negotiation process at UNCLOS III has made it clear that absolute freedom of the seas will provide a wide space for maritime powers to realize their interests, while other nations will face national security threats. It is difficult to imagine how a country can have the confidence to designate archipelagic sea lanes in an open posture when it does not have the ability to sense the passage of nuclear submarines through its archipelagic waters, or how a country can have the confidence to minimize restrictions on the navigation of warships of other countries in an open posture when it does not have sufficient defense capabilities.

The “FON program” is a perfect example: it is based on a unilateral U.S. interpretation of the international law of the sea, and through this unilateralist act, it prevents the formation of international law that is not favorable to U.S. interests, imposes its claims and positions on other countries, and promotes a “rules-based maritime order” that prioritizes U.S. interests.

END

Read the original Chinese version?here《此“航行自由”非彼“航行自由”》 .

Read the?SCSPI ?English version?here .

Thanks to?Pekinology and Wang Zichen