June 2019 CHATHAM CHATHAM HOUSE EXPERT PERSPECTIVES 2019

IDEAS FOR

MODERNIZING INTERNATIONAL An annual survey of risks and opportunities in international affairs

ORDER THE RULES-BASED THE

CHATHAM HOUSE EXPERT PERSPECTIVES 2019 IDEAS FOR MODERNIZING THE RULES-BASED INTERNATIONAL ORDER

CHATHAM HOUSE EXPERT PERSPECTIVES 2019 Chatham House Expert Perspectives All rights reserved. No part of this Design and typesetting: publication may be reproduced or Soapbox, www.soapbox.co.uk An annual survey of risks and transmitted in any form or by any means, opportunities in international affairs Printed and bound in Great Britain electronic or mechanical including by Pureprint Published: June 2019 photocopying, recording or any information storage or retrieval system, without the The Royal Institute Commissioning editor: Adam Ward prior written permission of the copyright of International Affairs Editor: Jake Statham holder. Please direct all enquiries Chatham House to the publishers. 10 St James’s Square Editorial support: Jo Maher, Mike Tsang London SW1Y 4LE Chatham House, the Royal Institute of Digital: Nick Capeling, +44 (0) 20 7957 5700 International Affairs, does not express Lyndsey Jefferson, Jason Naselli opinions of its own. The opinions expressed www.chathamhouse.org Copyright © The Royal Institute in this publication are the responsibility Charity Registration No. 208223 of International Affairs, 2019 of the author(s).

ISBN: 978 1 78413 339 9 Preface 6. Preserve the 11. Tackle the 16. Raise the Bar [page 1] Effectiveness of ‘Splinternet’ Thomas Raines Antibiotics with Marjorie Buchser [page 56] a Global Treaty and Joyce Hakmeh Introduction David Heymann [page 38] and Emma Ross 17. Address 1. Adapt or Die [page 20] Russian Rule- Adam Ward 12. Increase breaking [page 2] Climate Ambition James Nixey 7. Renew the by Making Policy [page 59] Bretton Woods More Inclusive Global System Antony Froggatt perspectives Stephen Pickford and Catherine 18. Embrace 2. To Improve [page 24] Hampton Soft Power Global Govern­ [page 42] (but Recognize ance, Empower its Limits) Society 8. Rethink Champa Patel Robin Niblett the WTO’s Role 13. Target [page 63] [page 6] in a Digital, Agricultural Divided World Supply Chains Matthew Oxenford to Tackle 19. Rethink State- 3. Strengthen [page 27] Deforestation building in the the International Duncan Brack Middle East and Criminal Court [page 46] North Africa Elizabeth 9. Drive Global Renad Mansour Wilmshurst Action on Money- and Tim Eaton [page 9] laundering Regional [page 67] Nigel Gould-Davies perspectives [page 31] 14. Engage 4. Create a Global China to Uphold Code of Conduct Multilateralism – for Outer Space 10. Democratize but not at Patricia Lewis Trade Policy­ any Cost [page 13] making to Better Harriet Moynihan Protect Human [page 49] Rights 5. Recalibrate Jennifer Zerk the Respons­ibility [page 34] 15. Don’t to Protect Overstretch Calum Inverarity Hans Kundnani and James Kearney [page 53] [page 16]

PREFACE

what are the limits to international Some doubt whether any such A final dilemma we have kept in order, and how can global rules and order exists, or consider it to consist mind concerns clarifying who these institutions adapt to today’s proliferat- of multiple overlapping orders. There solutions are for. Like defining the ing challenges to peaceful cooperation is also sometimes the assertion that rules-based international order, this between states? These are the princi- it is an invention of liberal democra- is more complicated than it might pal questions explored, from a vari- cies, designed to impose a system for seem, and goes to the centre of ety of angles, in this year’s edition of the benefit of Western diplomatic, difficult questions about who should Chatham House Expert Perspectives, military and economic agendas. be setting and enforcing global rules our annual survey of risks and oppor- The contributors to this volume and whose interests they serve. The tunities in international affairs. were given the latitude to interpret the common thread, if there is one, is that We launched this series in 2018 rules-based system broadly, allowing while one can certainly disagree about with a collection of essays identifying the essays here to tackle a wide range which rules to follow or who should trends and inflection points – for better of subjects and to accommodate be in charge, a world entirely with- or worse – across a range of thematic a variety of perspectives on the inter- out rules is not desirable. areas from geopolitics to climate national order and its modernization. change. In this 2019 edition, our The ideas advocated thus encompass researchers expand on the ‘opportu- everything from treaty negotiation nity’ side of that ledger by proposing, and the development of other legal or at least examining the potential to instruments to the less formalized develop, solutions to some of the most corralling of voluntary compliance pressing issues for global governance. with agreed goals. The authors have Framing this assessment is the sought to keep the debate pragmatic concept of the ‘rules-based interna- and to avoid wishful thinking – instead tional order’. We have chosen this proposing approaches that at a min- theme in part because of its currency imum can credibly be advocated by in the contemporary policy dis- policymakers, while identifying where course, but also to stimulate debate the chief obstacles to progress on around highly contested views on a given issue lie. Rules, of course, are the effectiveness and desirability made to be broken, so a number of the of different models of international essays explore what can be achieved governance. The definition of the when the rules don’t work, or when rules-based order is not agreed. particular actors ignore them.

Preface 1 01. introduction

ADAPT OR DIE

by Adam Ward

Historically, efforts to build rules-based international orders have emerged out of conflict, only for each system to falter when a new crisis emerges. At issue today, with the post-1945 multilateral system under strain, is how to modernize the making and application of rules to break that cycle.

2 Chatham House Expert Perspectives 2019 the most vexing, complicated national ambitions; and those who pattern of behaviour currently sur- and elusive question in international sense in it a presumption of universal rounding them presents some danger- relations is how to achieve an order, values and shared interests that jars ous echoes from the past. based on rules, that enjoys legitimacy, with their own particular historical Throughout history, most at- rewards investments in cooperation, experience and political preferences. tempts to form international orders reconciles clashing interests and deters And in a world in which each country have been conceived in a coercive way. conflict. It is not a problem over which occupies its own place on the spectrum From classical antiquity to the 20th a magic wand can be waved. But in our of attraction to, tolerance of and resist- century, the dominant form of order own time, immense and patient efforts ance to multilateralism, it is inevitable has been that imposed or attempted by have been made towards that general that the present system should be successive territorial empires, or by pre- goal, however imperfect the result. a patchy and incomplete one. dominant powers who made the rules The concept of the ‘rules-based by fiat and were deferred to by their international order’ refers today in its The policy neighbours and satellites. Significant most general sense to arrangements attempts at more collaborative con- put into place to allow for cooperative challenges ceptions of order, aimed at coexistence efforts in addressing geopolitical, eco- and minimizing risk through rules and nomic and other global challenges, and may be new, accepted conventions, have been far to arbitrate disputes. It is embodied in rarer. And the key point about them a variety of multilateral institutions, but the pattern is that they have been attempted only starting with the United Nations and after competition has spilled over in an running through various functional ar- of behaviour uncontrolled, exhausting and ruinous chitectures such as the Bretton Woods currently conflict that has called for mechanisms system, the corpus of international law and understandings to prevent a re- and other regimes and treaties, down surrounding currence of disaster. That, in any case, to various regional instances where has been the European experience, and sovereignty is pooled or where powers them presents subsequently the result of the engulfing have been delegated consensually by crises that radiated out globally from states on a particular issue. some dangerous Europe in the 20th century. Some aspects of the rules-based echoes from Early efforts at order-building order are heavily informed by distinct focused on mutual recognition values, such as those contained in the past. and the management of what were the Universal Declaration of Human felt to be inevitable rivalries. The Rights. But, more often than not, they If that patchiness seems increas- Westphalian Peace of 1648 emerged simply prescribe a set of basic princi- ingly apparent today, then this reflects from a 30-year period of religious war ples for how the business of interna- the proliferation of problems on a truly in Europe. It emphasized the sanctity tional political and economic relations global scale that multilateral initiatives of sovereignty and non-interference in is to be transacted. The parameters of have as yet failed to keep up with. the internal affairs of other states as legitimate and illegitimate behaviour This is partly because of the sheer pace a precondition for order, but relied on are specified. Compliance is incen- of change and the deep complexity a jostling balance-of-power approach tivized, and some scope to sanction of problems, and partly because any to the preservation of a basic stability. transgressors is provided for. significant programme of coordinated A tolerance of conflicts to cor- For some, the rules-based inter- action requires a focus and consensus rect imbalances was implicit to the national order is a politically highly that today is in shrinking supply. scheme. But its acute sensitivity to charged concept. Indeed, the absence More than that, some of the sharpest shifts in alignments of power contrib- of a common standardized definition challenges – climate change; the lack or uted to the later conflicts – from the of it is perhaps a by-product of the weakness of rules in the sea, space and wars of the Spanish Succession and controversy which the mere notion cyber domains; the dilemmas thrown Austrian Succession to the Seven Years’ of a rules-based order often attracts – up by technological change – are War – that ravaged Europe in the 18th among those who had no or little problematic precisely because they are century and occurred in an increasing- part in its shaping; those who regard areas in and through which geopolitical ly global theatre of military operations, multilateralism as an infringement competitions are being contested. The tracing the development of European of sovereignty and a straitjacket on policy challenges may be new, but the imperial projects.

Introduction Adapt or Die 3 Despite these shortcomings, demurred, while other major powers bi-systemic in the complete contrast in the balance-of-power model was progressively withdrew or were thrown the ideological affinities and economic produced again as a remedy to un- out – and the military means to impose models that were promoted. Nuclear controlled conflict, at the Congress of itself, a divided and often circumspect weapons raised the stakes associated Vienna in 1814–15, following more than League faltered in meeting a succes- with direct conflict to an existential 20 years of French Revolutionary and sion of international crises. It then level, and so pushed armed contests Napoleonic wars. A Concert of Europe, collided fatally with the revanchism to peripheral theatres or on to skir- accommodating a rehabilitated France, of Germany, Italy and Japan that pro- mishing proxies. was instituted to regulate the system duced the Second World War. The collapse of communism in the and periodically decide major geo- The ambitiousness and eventual early 1990s ushered in a new dispen- political issues. But it fell into disuse. institutional intricacy of the UN sation. Those who divined the arrival And although Europe did not suffer system founded in 1945 marked of a ‘unipolar moment’ for the US were a general war for the rest of the 19th a response to the scale of the ordeal perhaps more accurate in their choice century, the salient geopolitical facts through which the world had passed, of epithet than they knew. At least were ones not of power balances but and sought to correct the deficits of on the surface, the US became by far of the sharp relative decline of France the League. The UN’s membership the preponderant power. The decline and the vertiginous rise of Prussia, and the activity of its main organs and and 1991 dissolution of the Soviet which defeated Austria and France specialized agencies all grew prodi- Union, in consequence of its economic on the path to German unification. giously in succeeding decades, as did decrepitude and strategic overstretch, These dynamics produced convo- its efforts to advance the spirit and not only removed the US’s peer com- luted and ever-widening balancing culture of multilateralism. petitor, but also opened up avenues manoeuvres that by the eve of the But by giving special privileges for promoting economic liberalization First World War in 1914 had congealed to the victors, principally through veto and democratic government. This shift and hardened into the opposing Triple rights held among a small group of was manifest in particular in changing Alliance and Triple Entente systems, permanent Security Council members, dynamics in Europe. The US had spon- which trapped their respective the UN reflected and perpetuated sored the reunification of Germany and members into tangled commitments a certain historical circumstance: there was a patron of its subsequent embed- to fight at the trigger of a crisis. was no formal institutional adaptation ding in an integrating, democratic and The peacemaking efforts, in Paris in its highest structures to account liberal region. Over time, this drew the in 1919, that followed the war entailed for a progressive redistribution of former Warsaw Pact members into EU conscious efforts to overturn the international power, the rehabilitation and NATO structures (albeit at a pace balance-of-power model. The tone was of defeated countries, the rise of the and with a completeness that Russia’s set by US President Woodrow Wilson’s decolonized world or the desire of strategic calculations could not be Fourteen Points, with their emphasis emerging powers to assume interna- accommodated to). on transparency and openness, while tional responsibilities commensurate And yet, despite these advances, the concepts of egalitarianism among with their heft. Rather than a mecha- in retrospect the chief development states, the drive towards disarmament nism for international governance, it of the 20 years after the Cold War was and the practice of collective security remained an intergovernmental body a different one: globalization had at were central to the revolutionary through which states pursued their a gathering pace prompted a redistri- creation of a League of Nations in 1920. specific or collective priorities. bution of political power, while its in- But the peacemaking also included Indeed, the dominant questions terlocking economic structures created a punitive dimension – the designation around order in the first five decades a dense web of interests and depend- of German culpability, the demand of of the UN’s existence were those posed encies that moved in all directions. economic reparations and territorial by the Cold War conducted by the It was likely in these circumstances adjustments – imposed by victor on US and the Soviet Union and their that the appearance of any major vanquished. To its critics, the inter- respective allies and satellites, while emergency would produce insistent national order being evolved, and the the UN in effect was a prominent arena voices demanding what they saw as rules drafted to underpin it, had the in which this global antagonism was a more inclusive, legitimate and effec- attributes of an involuntary settlement carried out. The world order was bipolar tive form of international order. more than those of a construct built in concentrating power in two camps, Crises duly arrived, first in the by equals. Lacking a comprehensive with a swath of neutrals, non-aligned shape of the 2003 US-led invasion membership – crucially, the US had and swing players in between; and of Iraq, which strained alliances

4 Chatham House Expert Perspectives 2019 and stirred controversial debates and its introversion fed by a succession an approach depends on a revision about the justice and permissibility of crises, of which the amputation of of the rule-making system towards of military interventions and the need the Brexit-bound UK is simply one. The greater inclusivity and a broader say for constraints on US power; and then EU has yet to chart its future course or as to the issues it should address. in the form of the financial meltdown define a global strategy to uphold and It is in the context of these trends of 2008, seen by many as a principally advance the multilateralism which has and structural shifts that Chatham Western debacle calling for new global been at its core. Russia unabashedly House Expert Perspectives 2019 offers economic governance structures as is subverting the rules-based order ideas for how to modernize and adapt instanced in the improvised G20. as part of a programme of aggrieved elements of the rules-based interna- Neither set of debates was conclu- self-aggrandizement. Japan champions tional order. As the title of this opening sively resolved, but each persisted the principle of a rules-based system, essay indicates, the imperative to against the backdrop of quickening but the country has been disoriented ‘adapt’ reflects the gravity of contem- systemic change. by its abrupt detachment on this issue porary challenges, and the inability from its traditional US partner; while of many existing structures to underpin The ‘America Japan has sought to engage like-minded ever-more-essential cooperation. countries in the West, they have not Chatham House experts do not offer First’ posture forged a concerted practical plan of a master plan, but they attack the prob- action together. lem from a variety of indicative angles. of the Trump Among other regional powers, Suggestions are offered as to where Brazil has a populist government that gaps in international rules – regarding administration echoes many of the Trump adminis- economic governance, the global tration’s instincts, and India, whatever health architecture and in respect has upturned its preferences, has yet to acquire of under-regulated domains such as the central a foreign policy or presence on the space, for example – need to be filled to global stage equal to its demographic address immediate problems and ad- feature of weight and economic potential. vertise the relevance of multilateralism. Prominent points of risk in this Other ideas demonstrate how the system. fragmenting picture are the multilater- logjams affecting some aspects of the al trade system, efforts to address cli- system can be worked around; how key The dilemmas about the shape mate change, and collective measures powers with scope to shape the system and maintenance of a rules-based order to deal with entrenched conflicts. should be engaged; how a broader with multilateralism at its core have One obvious consequence of the variety of actors beyond national since only deepened. The world is pull- attrition of the rules-based system governments need to be drawn into ing in different directions. The ‘America through the indifference or ambitions the effort; how rule-breakers might First’ posture of the Trump administra- of the great powers is that it will leave be tackled; and how imposing order tion has upturned the central feature smaller states much more exposed and on some chaotic situations requires of the system. It entails a distaste for hostage to the vagaries of geopolitical the fundamental premises of existing multilateral agreements, a disavowal competition. A key question therefore policies to be rethought. of traditional notions of US leadership, is whether such states will choose and Chatham House, which cel- and an insistence on the unimpeded ex- be able to defend a system which gives ebrates its centenary in 2020, is ercise of American power in pursuit of them a measure of protection. Over a child of efforts after the Great War defined national interests. China asserts recent decades, a variety of regional to reconceive the conduct of interna- the centrality of multilateralism, and groupings – ASEAN, the African Union, tional relations and fulfil a mission practises it selectively, but on the whole the Gulf Cooperation Council, the that is today defined as the creation favours binary diplomatic transactions Organization of American States – of a ‘sustainably secure, prosperous where it holds asymmetric advantages; have evolved as species of rules-based and just world’. The historical record it has used this approach in the con- mechanisms and in order to gather shows that international orders not struction of its Belt and Road Initiative, their collective weight. They make built on these attributes will fail.  as well as on other fronts. Europe has a ready constituency for those who created in its continent a rules-based would build a coalition for multilat- adam ward is the deputy director order par excellence in the shape of eralism. But it is also clear that the sup- of Chatham House. the EU, but its energy has been sapped port of smaller regional players for such

Introduction Adapt or Die 5 02. politics and international cooperation

TO IMPROVE GLOBAL GOVERNANCE, EMPOWER SOCIETY

by Robin Niblett

As necessary as it remains to improve rules-based systems, the future of international order will also rely on states engaging more creatively with a wider range of constituencies – from citizens and civil society to the private sector and local political actors.

6 Chatham House Expert Perspectives 2019 the idea behind the post-war against demands to modernize as evidenced by the re-emergence international order established since the current rules, which would in turn of authoritarian ‘strongmen’ leaders 1945 has been to preserve peace be- reduce US influence – for example, and the erosion of recent gains in tween the major states. The UN and its by changing the voting arrangements democratic governance. Security Council set rules under which in the UN Security Council or on the Each of these efforts ignores conflict is permitted or forbidden. executive board of the IMF. the fact that a solely state-centric An infrastructure of supporting insti- international order is itself becoming tutions and accompanying rules seeks an anachronism. Society’s evolution to buttress this central objective. In the The world needs over the past 40 or so years has security realm, these include the nu- a new concept encompassed dramatic demographic clear Non-Proliferation Treaty (NPT), change and ageing; huge technological the Chemical Weapons Convention of international progress and diffusion; deepening eco- and the Geneva Conventions. Rules nomic globalization and human and for trade and financial crisis manage- cooperation that environmental interconnectedness; ment are embodied principally in the and the intensification of personal World Trade Organization (WTO) is better suited expectations and anxieties alongside and the International Monetary Fund to the changing the growth of a global middle class. (IMF), which seek to ensure that Together, these trends have created economic interaction does not return ways in which an inescapably interdependent world, to the reductive competition of the in which states cannot by themselves interwar years. people’s hopes, manage the challenges to their future Although international in prosperity and security, even when scope, the order of the 20th century expectations living in peace. has principally been led by the West, The future of international meaning the United States and its and capaci- order, therefore, does not lie simply allies. The pre-eminence of their views ties can be in reforming today’s institutions for has been sustained by a set of formal international cooperation, as impor- plurilateral and bilateral alliances marshalled to tant and necessary as this is to man- and intergovernmental coordinating age the rebalancing of economic, mechanisms – including NATO, the deliver desired political and military power and the Organisation for Economic Co- challenges of interdependence. The operation and Development (OECD) outcomes. world also needs a new concept of and the G7 – which have persisted international cooperation that is into the 21st century. At the same time, many states better suited to the changing ways This entire construct is now being across the world are hedging against in which people’s hopes, expectations called into question, principally because the emergence of a more self- and capacities can be marshalled of the changing balance of global interested US and powerful China to deliver desired outcomes. political and economic power since by strengthening regional institutions In the future, the capacity to the 1990s. This has resulted in China such as the African Union, the resolve shared challenges will rely becoming the second-most powerful European Union and the Association also on the contributions of citizens, state in the world and has seen the US, of Southeast Asian Nations (ASEAN). civil society, the private sector and since the election of Donald Trump, Some also put their hope in more political actors below the level of the retreat from its leadership role in ad hoc, voluntary arrangements to state. Cities, regions and local commu- the current international system and confront the global challenges of this nities, multinational companies and advance its national interests on century – through the Paris Agreement civil society organizations will not just a more unilateral basis. to address climate change, the Financial be ‘consumers’ or recipients of govern- Much of the debate about the Action Task Force to combat money- ment policies, but active partners in future revolves around the question laundering and terrorist financing, promoting solutions. (Indeed, the late of whether the US under a different and the Proliferation Security Initiative, Kofi Annan had championed a similar president will return to its leadership for example. Other states are accepting sort of inclusive approach to complex role in a ‘rules-based’ international or even embracing the return to problem-solving, for example through order. However, this idea runs up zero-sum international relations, the UN Global Compact.) Better

Global perspectives To Improve Global Governance, Empower Society 7 informed, more politically aware and actions to sustain domestic stability what needs to happen digitally connected, citizens and civil are interpreted by other states as society can mobilize individually and potentially offensive, contributing — With the post-1945 collectively towards common policy to a cycle of geopolitical mistrust. settlement under strain, goals, potentially playing a critical role Whatever the short- or even the world needs a new in addressing complex issues such as medium-term benefits, history has concept of international climate change, resource overcon- shown that governance systems in cooperation better suited sumption and rising health costs. which citizens are kept subservient to mobilizing citizens and This more distributed approach to the state risk becoming unsustain- societies in pursuit of to international relations will put able politically over time. In contrast, common objectives. a premium on building bridges systems in which governments are between local and sectoral best truly accountable to their citizens – — Reform to international practices, in addition to treaties through a separation of powers, the institutions should reflect and other agreements between rule of law and a strong civil society – changes in the balance of states. But for society to play this offer greater opportunities for domes- power, but should also be role, it is all the more important tic progress over the long term, as well accompanied by a fundamental that national governments deliver as for constructive international coop- reassessment of the nature a high quality of governance at home, eration in an interdependent world. of global governance. so as to empower private actors, civil States will struggle in the com- society and citizens. This demands, ing years to address shared challeng- — Rather than rely solely among other things, the expansion es in a world of weak international on state leadership, a more of effective and accountable systems institutions and geopolitical compe- distributed approach to of governance that will allow citizens tition. The goal, therefore, should be international relations should to be agents of positive change to a more inclusive approach to interna- incorporate more input the best of their desire and abil- tional governance, rather than a re- from citizens, civil society, ity, both in domestic affairs and turn to a brittle international order the private sector and sub- alongside others internationally. of states.  state political actors. Unfortunately, differences in interpretation of the correct balance — An effective robin niblett is the director between the respective rights and international order will of Chatham House. responsibilities of citizens and civil also rely on the expansion society, on the one hand, and, on of accountable domestic the other, of the state constitute one of systems of governance the central fault lines in international at the national level. affairs today. As the Chinese system of single-party rule and Russia’s evolution into an authoritarian proto-democracy illustrate, illiberal models of political and social control are proving increasingly attractive at a time of international turmoil. These models may serve their governments’ immediate objectives for economic development and protection of sovereignty. But the obsession with preserving domestic stability limits the ability of citizens to engage effectively with others in initiatives aimed at international cooperation. At the same time, what the governments of these countries believe are defensive

8 Chatham House Expert Perspectives 2019 03. international law

STRENGTHEN THE INTERNATIONAL CRIMINAL COURT

by Elizabeth Wilmshurst

The ICC has been criticized for slow proceedings, weak management and ineffective prosecutions. The good news is that pragmatic reform need not entail fundamental treaty amendment; a culture change and more realistic expectations would go a long way.

Global perspectives Strengthen the International Criminal Court 9 the 1998 treaty which established only three convictions for the core But there is indeed some truth in the International Criminal Court international crimes. There have been the criticisms made of the internal (ICC) was adopted at a time when criticisms of the judges, the former workings of the court. One problem the world (or most of it) was willing Prosecutor and other officials, as well is that the particular combination of to reach multilateral agreements on as concern over particular decisions of the civil and common law systems a variety of topics and was encourag- the court. The allegation that the court that has developed has produced ing the development of international is only interested in crimes in Africa[1] cumbersome procedures regarding criminal justice. The two tribunals, is perhaps heard less frequently now the representation of victims at most set up by the UN Security Council, than it once was (most of the African stages of the proceedings. It has also for the former Yugoslavia and for governments concerned referred the resulted in endless appeals from huge Rwanda had been relatively success- situations in their countries to the ICC numbers of small decisions made by ful. The time was ripe for states to themselves), and there has not been one chamber or another. Then there agree together to set up a permanent the mass walk-out of African states are the management failures which international court with wider scope that was once predicted. But in other have led to officials of the court being than the two tribunals. quarters there is serious unease about awarded compensation by the admin- the situation in the court. As the UK istrative tribunal of the International The court’s representative said at a meeting last Labour Organization (ILO) because year, ‘We cannot bury our heads in the of the way they were treated by the proceedings are sand and pretend everything is fine court, and finally the decision of a few when it isn’t.’[2] of the judges to take proceedings cumbersome The negative assessment of the themselves at the ILO to have their ICC’s work may be countered by the salaries increased. and lengthy. fact that it is the failure of states to Some ICC decisions have been met cooperate with the court that causes with surprise. For example, a former Many of the many of the problems. Further, the vice-president of the Democratic accused are expectations of states and civil society Republic of the Congo, Jean-Pierre about the possibilities of international Bemba, who was in the custody of still at large. criminal justice have been so high that the ICC for 10 years, was convicted by no court would be able to meet them. a unanimous trial chamber of various So the ICC was created, with juris- It is not possible for one court actually crimes and then succeeded on his diction over the international crimes to ‘end impunity’ for international appeal. Following this and the acquit- of genocide, crimes against humanity crimes,[3] nor to prevent war-related tal of former Côte d’Ivoire president and war crimes; its jurisdiction for violence and mass atrocities, nor Laurent Gbagbo,[5] there are concerns the crime of aggression developed to satisfy all victims. about the ability of the prosecution later. The court was given the power Moreover, the criticisms of the to succeed in cases against high-level to prosecute nationals of states that ICC come against the background alleged perpetrators. Most recently, were parties to the ICC Statute, and of the global crisis for multilateralism there has been criticism of the reason- also to prosecute where the crime was more generally. The present US admin- ing behind the appeal court decision committed in the territory of a state istration is notoriously hostile towards regarding the immunity – or, rather, party, whatever the nationality of this international institution.[4] lack of immunity – of former president the alleged criminals. The court had On the plus side, the establishment Bashir. And a decision of a chamber of further jurisdiction when the Security of the court has encouraged states to the ICC not to authorize the opening Council referred a situation to it. revise their own laws on international of an investigation in Afghanistan has That was some 20 years ago. There crimes and to institute their own pros- been seen as shielding the US from is now a perception in many quarters ecutions where it is possible to do so. possible proceedings (though it has that the ICC has not fulfilled the expec- It is also claimed that the very exist- been welcomed by others as a prag- tations of its founders. The court’s pro- ence of the court can be a deterrent to matic approach). ceedings are cumbersome and lengthy. potential perpetrators of international The message that certain prob- Many of the accused are still at large, crimes. The court has begun to add to lems with the ICC need fixing is including Omar al-Bashir, the former the body of international criminal law coming not just from the writings president of Sudan. Some €1.5 billion and has increased the possibility that of academics and the legal blogs,[6] has been spent, and there have been mass atrocities will be investigated. but from governments too, including

10 Chatham House Expert Perspectives 2019 those, like the UK, which are among ICC Statute should be interpreted in Institute of International Affairs, July 2013, the foremost supporters of the court. practice. Governments should reach https://www.chathamhouse.org/sites/de- The former presidents of the ICC’s out to the many civil society organiza- fault/files/public/Research/International%20 Assembly of States Parties (which tions which have supported the court Law/0713pp_iccafrica.pdf. comprises the representatives of over the years, to ensure that they are [2] GOV.UK (2018), ‘UK statement to ICC As- all states parties) say that they ‘are involved in the process. sembly of States Parties 17th session’, 5 Decem- disappointed by the quality of some ber 2018, https://www.gov.uk/government/ of [the court’s] judicial proceedings, speeches/uk-statement-to-icc-assembly-of- frustrated by some of the results, and Governments states-parties-17th-session. exasperated by the management de- should decide ficiencies that prevent the Court from [3] As the preamble to the ICC Statute desires. living up to its full potential’.[7] together at the See ICC (2011), Rome Statute of the International Changes to remove the worst Criminal Court, p. 1, https://www.icc-cpi.int/ excesses of the procedures that have Assembly of resource-library/Documents/RS-Eng.pdf. evolved could be effected without amendments to the treaty incorpo- States Parties [4] See the speech of John Bolton, US National rating the ICC Statute. It may be that to set in hand Security Advisor. Just Security (2018), ‘Bolton’s a change in culture is also needed. Remarks on the International Criminal Court’, More modesty by the court, along with a review of 10 September 2018, https://www.justsecurity. more realism from governments and org/60674/national-security-adviser-john-bol- civil society, is needed. And, attrac- the ICC’s ton-remarks-international-criminal-court/. tive as it might seem to push at the operations. [5] Gbagbo was accused of various crimes boundaries of the law, the court should which took place after Côte d’Ivoire’s election be realistic in what it can achieve. It is in 2010, in which Gbagbo lost power to Alas- next to impossible to prosecute a case Measures of this kind cannot sane Ouattara. The case was terminated by effectively where there is no coopera- detract from the fact that the ICC is the court following a year’s hearings in which tion from the state on whose territory fundamentally sound and that its role the prosecution put forward its evidence. the crimes were committed. What is is as necessary as when it was first needed is a court that can undertake established. As Richard Goldstone, [6] See, for example, Guilfoyle, D. (2019), efficient and effective criminal pro- former chief prosecutor of the United ‘Reforming the International Criminal Court: ceedings, delivering fair and impartial Nations International Criminal Is it Time for the Assembly of State Parties to justice in the small number of cases Tribunals for the former Yugoslavia be the adults in the room?’, EJIL:Talk! blog which it is reasonable to expect it to and Rwanda, has said, ‘If there were no post, 8 May 2019, https://www.ejiltalk.org/ address, in the light of the evidential ICC in existence today, many people in reforming-the-international-criminal-court-is- challenges, limited resources and many countries would be agitating for it-time-for-the-assembly-of-state-parties-to-be- limited state cooperation. and demanding one. That we have one the-adults-in-the-room/. Governments should decide togeth- is a singular achievement. It behoves us [7] Al Hussein, Z. R., Stagno Ugarte, B., er at the Assembly of States Parties to to make it the best possible and to assist Wenaweser, C. and Intelman, T. (2019), set in hand a review of the ICC’s opera- it, as States, civil society, and individ- ‘The International Criminal Court Needs Fix- tions. It has been suggested that a group uals, in the best and most productive ing’, Atlantic Council, 24 April 2019, of experts might be mandated to assess way possible.’ [9]  https://www.atlanticcouncil.org/blogs/ the management of the court;[8] on new-atlanticist/the-international-crimi- the basis of their report, governments elizabeth wilmshurst is nal-court-needs-fixing. could agree on the necessary improve- a Distinguished Fellow with ments. Not everything, however, can [8] Ibid. the International Law Programme come within the remit of such a group. at Chatham House. [9] Goldstone, R. (2019), ‘Acquittals by the Governments should adopt new rules International Criminal Court’, EJIL:Talk! blog and practices to address matters such post, 18 January 2019, https://www.ejiltalk.org/ as the election process for judges and References acquittals-by-the-international-criminal-court/. their training; governments might con- [1] See, for example, du Plessis, M., Malu- Richard Goldstone is also a former justice of the sider reaching their own understand- wa, T. and O’Reilly, A. (2013), Africa and the Constitutional Court of South Africa. ings on how some provisions of the International Criminal Court, London: Royal

Global perspectives Strengthen the International Criminal Court 11 what needs to happen

— Cumbersome procedures, ineffective prosecutions against high-level alleged perpetrators, and weak internal management are among current criticisms of the ICC.

— Improvements to the court’s effectiveness and credibility may be possible without amending the treaty incorporating the ICC Statute.

— The Assembly of States Parties should review the ICC’s operations, whether or not with a group of experts, and governments should agree on improvements.

— New rules and practices should address matters such as the election process for judges and their training.

— Better management of expectations of the ICC among governments, civil society and the court itself is needed.

— Governments might consider reaching their own understandings on how some provisions of the ICC Statute should be interpreted in practice.

— Civil society organizations should be involved in any procedures for reform.

12 Chatham House Expert Perspectives 2019 04. security

CREATE A GLOBAL CODE OF CONDUCT FOR OUTER SPACE

by Patricia Lewis

The rules governing human activity in space have been in place for only a few decades, and yet they are already out of date. They need to be built on and extended to reflect the dramatic and rapid changes in the use of space.

Global perspectives Create a Global Code of Conduct for Outer Space 13 the 1967 outer space treaty The problem the international asteroids are more promising than (ost) is the mainframe for space law. community now faces is that the use others, and some are closer to Earth

It recognizes the importance of the of space is changing dramatically and than others. Several companies have use and scientific exploration of outer rapidly. There are more satellites than been set up and registered around space for the benefit and in the inter- ever – well over 1,000 – and more own- the world to begin the exploitation ests of all countries. It also prohibits ers of satellites – almost every country of asteroids for precious metals (such national sovereignty in space, includ- uses information generated from as platinum) and compounds (such as ing of the Moon and other celestial space. Increasingly, however, those rare-earth minerals). Legally, howev- bodies. The OST prohibits all weapons owners are not countries, militaries er, this will be a murky venture. The of mass destruction in space – in orbit or international organizations but current international treaty regime or on other planets and moons – and the commercial sector. Very soon, the prohibits the ownership of a celestial does not allow the establishment of owners will even include individuals. body by a country – space is for all. military infrastructure, manoeuvres Small ‘mini-satellites’ or ‘cube-sats’ are But does international law prohibit the or the testing of any type of weapon poised to be deployed in space. These ownership or exploitation of a celestial on planets or moons. As the treaty can act independently or in ‘swarms’, body by a private company? The law makes clear, outer space is for peace- and are so small that they piggy-back has yet to be tested, but there are space ful purposes only. Except of course, on the launching of other satellites lawyers who think that companies are it is not – nor has it ever been so. and so are very cheap to launch. This exempt. Luxembourg and Australia The very first satellite, Sputnik, is changing the cost–benefit equa- are two countries that have already was a military satellite which kicked tion of satellite ownership and use. begun the registration of interest off the Cold War space race between Developing countries are increasingly for space-mining companies. the US and the USSR. The militaries dependent on space for communica- As humanity becomes more of many countries followed suit, and tions, the internet and information on, dependent on information that is gen- space is now used for military commu- for example, weather systems, coastal erated in or transmitted through space, nication, signals intelligence, imaging, activities and agriculture. the vulnerability to the manipulation targeting, arms control verification of space data is increasing. The de- and so on. However, in keeping with mands on the use of communications international aspirations, space is also As humanity frequencies (the issue of spectrum being used for all kinds of peaceful becomes more availability and rights), managed by purposes such as environmental the International Telecommunication monitoring, broadcast communica- dependent on Union (ITU),[2] need to be urgently tions, delivering the internet, weather addressed. There are now constant prediction, navigation, scientific explo- information that cyberattacks in space and on the digi- ration and – very importantly – mon- tal information on which our systems itoring the ‘space weather’ (including is generated in rely. For example, position, navigation the activity from the Sun). or transmitted and timing information such as from There are several other interna- GPS or Galileo is not only vital for tional agreements on space, such through space, getting us safely from A to B, but also as on the rescue of astronauts, the for fast-moving financial transactions registration of satellites and liability the vulnerability that require accurate timing signals. for damage caused by space objects. Almost all of our electronic systems There is also the Moon Treaty, which to the mani- depend on those timing signals for governs activities on the Moon pulation of synchronization and basic functioning. and other moons, asteroids and Cyber hacks, digital spoofing and ‘fake’ planets.[1] More recently, states at the space data information are now a real possibility. UN Committee on the Peaceful Uses There is no rules-based order in place of Outer Space (COPUOS) in Vienna is increasing. that is fit to deal with these types have agreed on guidelines to deal with of attacks. the worrying situation of space debris Another major development Cyberweapons are only part of which is cluttering up orbits and pos- is the advent of asteroid mining. the problem. It is assumed that states, ing a danger to satellites, thespace Asteroids contain a wide range if they haven’t already done so, will be station and astronauts. of metals and minerals – some positioning ‘defensive’ space weaponry

14 Chatham House Expert Perspectives 2019 to protect their satellites. The protec- such as cleaning up space debris, [3] The NATO Cooperative Cyber Defence tion may be intended to be against the principle of non-interference, and Centre of Excellence (CCDCOE), ‘Tallinn space debris – nets, grabber bars and how close satellites can manoeuvre Manual 2.0’, https://ccdcoe.org/research/ harpoons, for example, are all being in- to each other (proximity rules) need tallinn-manual/. vestigated. All of these ideas, however, to be agreed as a set of international could be used as offensive weapons. norms for space behaviour. Once one satellite operator decides A cross-regional group of what needs to happen to equip its assets with such devices, like-minded countries (for example many others will follow. The weaponi- Algeria, Canada, Chile, France, — The international rules- zation of space is in the horizon. India, Kazakhstan, Malaysia, Nigeria, based order for space – There are no international Sweden, the UAE and the UK) should enshrined in particular in the rules or agreements to manage these link up with UN bodies, including 1967 Outer Space Treaty – has developments. Attempts in Geneva the Office for Outer Space Affairs not kept pace with the rapid to address the arms race in space have (UNOOSA), COPUOS and ITU, and and dramatic changes in the floundered alongside the inability of key private-sector companies to kick- use of space. New norms of the Conference on Disarmament to start a new process for a global code behaviour and rules of the negotiate any instrument since 1996. of conduct to establish norms and road are needed. Attempts to develop rules of the road regulate behaviour in space. The UN and codes of conduct, or even to begin could be the host entity for this new — These norms and rules negotiations to prohibit weapons in approach – or it could be established need to address a host of space, have failed again and again. in the way the Ottawa process for contemporary or prospective There are no agreed rules to govern landmines was established, by a group developments, including cyber activity. The Tallinn Manuals[3] of like-minded states with collective re- asteroid mining, increased that address how international sponsibility for, and collective hosting numbers of satellite law is applicable to cyberwarfare also and funding of, the negotiations. owners, the emergence of address the laws of armed conflict in A new approach should also cover ‘mini-satellites’, cyberwarfare, space, but data spoofing and cyber cybersecurity in space. The UN pro- and the potential deployment hacking in space exist in far murkier cesses on space and cyber should of ‘defensive’ space weaponry legal frameworks. intersect more to find ways to create to protect satellites. The current system of international synergies in their endeavours. And space law – which does not even allow the problems ahead as regards spec- — A cross-regional group for a regular review and consideration trum management – particularly given of like-minded countries of the OST – is struggling to keep up. the large number of small satellites should link up with UN Space is the inheritance of humankind, and constellations that are to be bodies – including UNOOSA, yet the current generation of elders – launched in the near future – need COPUOS and ITU – and key as they have done with so many other urgent attention in ITU.  private-sector companies parts of our global environment – have to kick-start a new process let things go and failed to shepherd in for developing a global code patricia lewis is the research the much-needed system of rules to of conduct. director of the International Security protect space for future generations. Department at Chatham House. It is not too late, but it will require — Problems related to radio international cooperation among spectrum management – given the major space players: Russia, the References the large number of small US, China, India and Europe – hardly [1] All of these treaties and other documents satellites and constellations a promising line-up of collaborators can be found at UN Office for Outer Space to be launched in the in the current political climate. Affairs (2002), United Nations Treaties and near future – need urgent Principles on Outer Space, http://www.unoo- attention in ITU. Filling the governance gaps sa.org/pdf/publications/STSPACE11E.pdf. Norms of behaviour and rules of the [2] ITU (undated), ‘ITU Radiocommunication road need to be established for space Sector’, https://www.itu.int/en/ITU-R/Pag- before it becomes a 21st-century ‘wild es/default.aspx. west’ of technology and activity. Issues

Global perspectives Create a Global Code of Conduct for Outer Space 15 05. security

RECALIBRATE THE RESPONSIBILITY TO PROTECT

by Calum Inverarity and James Kearney

The effectiveness of the ‘responsibility to protect’ principle risks being undermined by apathy on the one hand and by the perception of it as enabling ‘intervention by the back door’ on the other. Could an alternative approach, focused on conflict prevention and wider stakeholder engagement, garner international support and re-energize a failing norm?

16 Chatham House Expert Perspectives 2019 this year, 2019, marks both the associated with R2P’s interpretation 70th anniversary of the Geneva and implementation is imperative if R2P has been Conventions and the 20th anniversa- workable solutions are to be found to criticized both ry of UN Security Council resolution ensure the most important of human 1265, the first to address the protection rights: the right to live securely. for failing of civilians in armed conflict. Upon these foundations, and in response to To prevent is to protect to mobilize the mass atrocities witnessed at the Recent discussion has shifted to- close of the 20th century, in 2005 the wards the provision of preventative interventions ‘responsibility to protect’ (R2P)[1] was action, as articulated in R2P’s second when necessary, codified by all UN member states to pillar.[5] This seems logical given that prevent such horrors from occurring the act of protection is, by definition, and at other in the future. R2P is defined by three preventative, and given that a broad pillars which emphasize, first, the consensus already exists as to the legit- times for primary responsibility of the state to imacy of such approaches.[6] It is there- ensure the safety and security of its fore worth considering strategies that providing civilians. The second pillar stresses emphasize this particular element of a smokescreen the responsibility of the international R2P as an entry point for efforts to community to support states in this improve protection: in other words for possible aim. The third iterates that the interna- leveraging interest in, and tolerance tional community has the obligation to of, pillar two to facilitate development violations ensure the protection of civilians when of a more sustainable and robust a state has manifestly failed to do so; framework. Such an initiative would, of state or when a state has targeted and at- however, have to be approached in sovereignty. tacked its own citizens. a pragmatic manner, given the reduced Since its adoption, R2P has been appetite for international norms.[7] When undertaken in a preventative criticized both for failing to mobilize As such, it should take the form of a re- capacity, these efforts would benefit interventions when necessary, and calibration of R2P, with the second pil- from the legitimacy afforded by the at other times for providing a smoke- lar explicated and developed to reflect UN, while utilizing the local knowl- screen for possible violations of state the increasingly multifaceted nature edge and resources available within sovereignty.[2] In large part, this can of governance. each region to prepare responses to be attributed to the interpretation The primary obstacle to revitaliz- future crises. The resulting structures of R2P’s third and most contentious ing R2P in this way is the likelihood and mechanisms might then serve as pillar. From interventionism during that such action may be interpreted ‘tripwire’ warning mechanisms and de- the 2000s[3] to more recent inter- as ‘upstreaming’ interventionism, terrents respectively which, if compro- national responses to situations in which would equate to little less than mised, would bolster any subsequent Georgia and Ukraine,[4] this pillar the transposition of pillar three at an case for action under pillar three. has been subject to misappropria- earlier stage. To address this, policy tion by a variety of actors – which in development would benefit from in- Actualizing pillar two turn has harmed the R2P principle creased cooperation between the UN, Complementing this work, the role more broadly. regional groupings and civil society of CSOs should be clarified to diversify This has led to the present situ- organizations (CSOs). There is an the pool of those responsible within ation in which questions loom over opportunity for the UN to rediscover the international community for R2P’s relevance and legitimacy, com- its role as the coordinator of such ac- ensuring the protection of civilians. pounded by ever-growing challenges to tion, given that regional leadership on Meaningful cooperation between the the international rules-based system. R2P has been lacking in the EU[8] and UN and civil society has thus far been It should not, however, take another has gone unsupported in, for example, undermined by ambiguity over what mass atrocity on the scale seen in West Africa.[9] Key aspects of this the protection of civilians means and Rwanda or Srebrenica to encourage role could involve the UN promoting uncertainty as to the optimum role the international community to ac- capacity-building efforts and develop- of CSOs within R2P.[11] knowledge the present failings of R2P. ing joint-response mechanisms with However, some operational CSOs An examination of the challenges regional organizations.[10] are already widely perceived as key

Global perspectives Recalibrate the Responsibility to Protect 17 players in the early-warning pro- More encouraging have been calum inverarity is a programme cess,[12] and at a minimum should initiatives born out of work by the coordinator and research assistant therefore have this important function High-Level Advisory Panel on the with the International Security more formalized. Capacity-building Responsibility to Protect in Southeast Department at Chatham House. and response mechanisms involving Asia.[16] Many members of the in-country CSOs would benefit from Association of Southeast Asian Nations james kearney is a senior such groups’ ability to sound the alarm (ASEAN) are beginning to develop and programme manager with the on nascent threats to security. This integrate R2P-pertinent curriculums International Security Department approach would also bolster the trans- into training courses conducted in, at Chatham House. parency of preventative actions by di- for example, police and justice agen- versifying the range of stakeholders in- cies.[17] Other states have improved volved. It would provide a legitimized, early-warning systems. References independent source of reporting and Similarly, states facilitating [1] First published in 2001 by the Canadi- verification on instances of instability. development aid projects in fragile an-sponsored International Commission on This could provide the UN with the evi- contexts would do well to countenance Intervention and State Sovereignty (ICISS). dence required to recognize threats to the security needs of the beneficiaries [2] Belloni, R. (2014), ‘Civil Society and the civilian lives and increase political will of such work. For example, if key com- Responsibility to Protect’, Global Society, among UN Security Council members munity facilities are being constructed 28(2), pp. 158–79. to discharge their responsibilities – in by donor agencies or NGOs in estab- line with the UN Charter, and as vali- lished towns, can these facilities be [3] Moses, J., Bahador, B. and Wright, T. dated in the Sustainable Development safely accessed along main routes from (2011), ‘The Iraq War and the Responsibility Goals. Through broadening the base nearby villages or rural communities? to Protect: Uses, Abuses and Consequences of authorized actors, the responsibility Small changes could provide signifi- for the Future of Humanitarian Intervention’, can be shared, acknowledged and cant security benefits in areas where Journal of Intervention and Statebuilding, acted upon. instability persists. 5(4), pp. 347–67. Although R2P is frequently viewed as peripheral to many national Conclusion [4] Cox, D. G. and Stanley, B. (2018), interests, it should be considered R2P is presently vulnerable to the ‘The Responsibility to Protect has Turned crucial to the security of all states. dual forces of disinterest within an in- into a Strategic Mistake’, E International The conflict in Syria, which has forced ternational community that is increas- Relations, 1 October 2018, https://www.e-ir. millions of people mostly westwards, ingly at odds with itself and the pres- info/2018/10/01/the-responsibility-to-pro- continues to challenge the capacity of ence of actors who may look to exploit tect-has-turned-into-a-strategic-mistake/. neighbouring states to absorb and care this lack of coherence. As the foun- [5] Guterres, A. (2017), ‘Remarks to General for the displaced. Ongoing threats to dations of the rules-based system are Assembly informal dialogue on the responsi- human security in North Africa and placed under greater strain, R2P runs bility to protect’, United Nations, 6 September sub-Saharan Africa have forced other the risk of sliding further into irrele- 2017, https://www.un.org/sg/en/content/sg/ people to flee to countries including vance. While a lack of consensus pre- speeches/2017-09-06/secretary-generals-re- Cyprus, Greece, Italy and Spain.[13] vails at the state level, this safeguard sponsibility-protect-remarks. Reactive response has become the of human security must instead be norm, at the expense of effective reinforced through alternative struc- [6] Smith, K. E. (2018), The EU and the prevention measures. tures which are more agile and capable Responsibility to Protect in an Illiberal Era, Efforts such as the Focal Points of responding within present geopolit- Dahrendorf Forum IV Working Paper No. 03, Initiative, which has encouraged ical confines. Indecision and infighting https://www.dahrendorf-forum.eu/wp-con- each state to appoint a senior civ- cannot be permitted to trump the tent/uploads/2018/08/EU-and-RTP-in-an- il servant to lead national efforts protection of civilians. R2P must be illiberal-era.pdf. to galvanize R2P, have had limited reinvigorated, not abandoned, by [7] Niblett, R. (2018), ‘Rediscovering a sense impact.[14] Countries such as the the international community.  of purpose: the challenge for western think- UK have come under criticism for tanks’, International Affairs, 94(6), November failing to appoint an official who is 2018, pp. 1409–1429, https://doi.org/10.1093/ sufficiently senior, or wholly dedicated ia/iiy199. to mainstreaming R2P across relevant government departments.[15]

18 Chatham House Expert Perspectives 2019 [8] Smith (2018), The EU and the Responsibili- ity to Protect in Southeast Asia, ty to Protect in an Illiberal Era. https://www.un.org/en/genocidepreven- tion/documents/responsibility-to-protect/ [9] Wabuke, E. (2019), ‘Regional Organiza- HLAP%20Report_FINAL.pdf. tions’ Application of R2P: The ECOWAS Mili- tary Intervention Into the Gambia’, Lawfare, [17] Frank, D. A. (2018), ‘The Reduction 22 May 2019, https://www.lawfareblog.com/ of Mass Atrocity Crimes in East Asia: The regional-organizations-application-r2p-ecow- Evolving Norms of ASEAN’s Prevention Mech- as-military-intervention-gambia. anisms’, Genocide Studies and Prevention: An International Journal, 11(3), [10] Genser, J. (2018), ‘The United Na- pp. 98–108. tions Security Council’s Implementation of the Responsibility to Protect: A Review of Past Interventions and Recommendations for what needs to happen Improvement’, Chicago Journal of Interna- tional Law, 18(2), https://chicagounbound. — Revitalizing R2P has uchicago.edu/cjil/vol18/iss2/2. to be done in a pragmatic [11] Willmot, H. and Sheeran, S. (2014), manner, building on ‘The protection of civilians mandate in UN existing structures. peacekeeping operations: reconciling pro- tection concepts and practices’, International — Efforts should focus on Review of the Red Cross (2013), 95(891/892), the preventative aspects pp. 517–38. of R2P’s second pillar.

[12] Belloni (2014), ‘Civil Society and the — R2P approaches must Responsibility to Protect’. engage a wider stakeholder

[13] International Organization for Migration base. Responsibilities should (2018), ‘Mediterranean Migrant Arrivals be distributed more evenly Reach 10,949 in 2018; Deaths Reach 442’, throughout the international press release, 9 March 2018, https://www. community, in collaboration iom.int/news/mediterranean-migrant-arrival with civil society actors. s-reach-10949-2018-deaths-reach-442. — R2P considerations [14] Ralph, J. (2014), Mainstreaming the must be mainstreamed responsibility to protect in UK strategy, report within development practice, for United Nations Association, p. 10, particularly at the state https://www.una.org.uk/sites/default/files/ and regional levels. UNA-UK%20Policy%20briefing%202%20 -%20Professor%20Jason%20Ralph%20-%20 Mainstreaming%20R2P%20in%20UK%20 strategy.pdf.

[15] Ferguson, K. (2017), Maintaining momentum in a changing world: Atrocity prevention in UK policy, report for Protection Approaches, p. 9, https://ecr2p.leeds.ac.uk/ ecr2p-assists-ngo-report-on-atrocity-preven- tion-in-uk-policy/.

[16] Pitsuwan, S., Nguyen Duy, H., Wibi- sono, M., Mahathir, M. and Romulo, A. (2014), Mainstreaming the Responsibility to Protect in Southeast Asia, report of the High-Level Advisory Panel on the Responsibil-

Global perspectives Recalibrate the Responsibility to Protect 19 06. health

PRESERVE THE EFFECTIVENESS OF ANTIBIOTICS WITH A GLOBAL TREATY

by David L. Heymann and Emma Ross

The way the world uses antibiotics has to change. A treaty to curtail unnecessary antibiotic use would bring much-needed global governance to the effort to combat antibiotic resistance, and would offer a clear way forward for all countries.

20 Chatham House Expert Perspectives 2019 there is an urgent need to bring and it transcends borders. It cannot be magnitude and urgency of the threat, global governance to the effort tackled successfully by a single country it may be the best instrument for main- to preserve the effectiveness of or international agency. It needs a co- taining and increasing political will, for antibiotics. The issue of increasing ordinated, multisectoral response. helping countries zero in on the most antibiotic resistance, and the need to feasible interventions and develop the use antibiotics more wisely, has gained Drug-resistant legislation necessary to implement recognition at the highest political them, and for filling the global govern- echelons, and there is evidence for infections ance gap in antibiotic stewardship. antibiotic-conserving interventions that Such a treaty should specify a prior- all countries could adopt to reverse the are already itized set of interventions, with target global threat. This confluence of factors timelines and phased implementation. makes the possibility of negotiating estimated to kill It should be flexible enough so that a global treaty aiming to reduce it can be amended to include more misuse and overuse of antibiotics in at least 700,000 interventions and future innovations, humans and animals more viable than people a year, as political will increases and as new, ever before. It is an opportunity that globally feasible tools become availa- should be seized. and could kill ble. Such a treaty should also include Antibiotics are a core tool of a robust accountability mechanism, re- modern medicine, but are increas- 10 million quiring regular tracking of progress in ingly being rendered ineffective by implementing the treaty’s provisions. the ability of bacteria to develop people a year One of the first steps should be to resistance. Drug-resistant infections by 2050 if left embark on a process to identify which are already estimated to kill at least of the interventions proposed in the 700,000 people a year, and could kill unchecked. global action plans, strategies and 10 million people a year by 2050 if left guidance of WHO, FAO and the OIE unchecked.[1] The potential impact Current multilateral approaches, would be priorities and feasible for all of antibiotic resistance also threatens though extensive, are insufficient in countries to implement. The Tripartite development and the global econo- key respects. The strategies, global is the natural choice for this exercise, my: recent estimates warn that the action plans and recommendations particularly given that these agencies economic damage from uncontrolled developed recently by the ‘Tripartite’ have called for strengthened accounta- antimicrobial resistance could be of UN agencies leading the response bility and global governance.[4] comparable to that of the 2008 at the global level[3] – the World Health A determination would need to financial crisis.[2] Organization (WHO), the Food and be made as to under which institution’s While bacteria have a natural abili- Agriculture Organization (FAO) and authority such a treaty should be nego- ty to develop resistance, making some the World Organisation for Animal tiated. If the proposed provisions fall level of antibiotic resistance inevitable, Health (OIE) – set out a comprehensive under the mandates of more than one persistent misuse and overuse of an- range of sound interventions for coun- international agency, it might make tibiotics in humans and animals have tries to write into their national action sense for the treaty to be negotiated encouraged the pace at which resist- plans on antimicrobial resistance. under the UN. ance develops to accelerate. We now However, not all countries have The findings of the prioritization urgently need to reverse course. In the the capacity to adopt all of the recom- and feasibility exercise should then last few years, international agencies mended interventions. To generate the feed into the negotiation of the treaty, have developed strategies and guid- scale of focused response needed and which should contain the interven- ance that identify and recommend bring effective global governance and tions that all parties can agree to evidence-based interventions. However, accountability to the effort, there is now include and be bound to deliver. Some a critical missing piece to the response a need to agree on a handful of priority measures that could be given serious is a global governance mechanism. measures that all countries can com- consideration include prohibiting Antibiotics are used to treat mit to and implement in unison. doctors and veterinarians from selling infections not only in humans, but A legally binding global treaty to antibiotics, banning the advertising also in animals and plants. Resistance curb the misuse and overuse of antibi- of antibiotics, increasing the use of is therefore a complex problem that otics is an attractive and viable option vaccines that prevent bacterial infec- also affects food and the environment, to consider in this respect. Given the tions in animals and humans, phasing

Global perspectives Preserve the Effectiveness of Antibiotics with a Global Treaty 21 out the use of antibiotics for livestock to antibiotics for those who need it. to develop national plans based growth promotion, and improving While curtailing misuse and overuse on the WHO Global Action Plan on hygiene in the management of hu- is central to addressing the problem Antimicrobial Resistance, endorsed by man and animal waste. of antibiotic resistance, it is estimated health ministers at the World Health Negotiation and acceptance of that more people die from no access or Assembly in 2015. The UN secretary- a treaty to curb improper use of antibi- delayed access to antibiotics than from general subsequently convened the otics would not be without significant antibiotic resistance.[6] The balance Tripartite of WHO, FAO and the OIE challenges. There are a huge range of between increasing appropriate access in the form of an Ad-hoc Interagency social, economic and cultural factors and reducing inappropriate use must Coordination Group (IACG) on contributing to the misuse and overuse be struck, which means that some Antimicrobial Resistance,[8] to of antibiotics. Political commitment of the interventions that would help provide guidance on what global will be necessary for success, and reduce misuse and overuse – such actions were needed, and called on a handful of countries would need as requiring a diagnostic confirmation the agencies to finalize a proposed to step up as champions of the idea. before antibiotics are prescribed, Global Framework for Development Countries that have thus far cham- or that access to antibiotics be and Stewardship to Combat pioned the issue include the UK and allowed only with a doctor’s prescrip- Antimicrobial Resistance.[9] The many other industrialized nations. tion – would not be feasible in some final recommendation of the IACG’s The more countries back the idea, countries, so other provisions would report to the UN secretary-general, the faster the process would move. need to be considered. published in April 2019, opens up The role of civil society advocacy the possibility of using the ongoing also cannot be underestimated. One process of developing the Framework of the keys to success of the first global The balance as a starting point for discussion health treaty negotiated under the between of ‘new binding or non-binding auspices of WHO – the Framework international instruments’. Convention on Tobacco Control increasing As the negotiation of a global (FCTC) – was the push from non- treaty is a lengthy process, and the governmental organizations and other appropriate threat of antibiotic resistance is urgent civil society groups. WHO estimates and growing every day, current efforts that the prevalence of smoking has access and to coordinate the response at the decreased globally from 24 per cent reducing global level must not stall. The need of the population aged 15 or older in for a global governance and account- 2005, when the treaty was signed, inappropriate ability mechanism and the potential to 19 per cent in 2017.[5] for a treaty to deliver that, meanwhile, The FCTC, ratified by 181 of the use must deserve serious consideration. 194 WHO member states, is a useful model in many ways. For instance, it be struck. david l. heymann is the head is a flexible treaty that provides care- of, and a senior fellow with, the fully selected evidence-based options Despite the challenges, there is Centre on Global Health Security that are feasible for all countries and now enough political traction around (CGHS) at Chatham House. obligates countries to regularly report the issue of antibiotic resistance to progress in implementing its provi- warrant serious consideration of emma ross is a senior consulting sions. However, a treaty to curtail an- the negotiation of a legally binding fellow with CGHS. tibiotic misuse and overuse would face international instrument. The idea is an important challenge that did not garnering support from experts and apply to the FCTC: while the solution advocates for the responsible use of References for tobacco control is to get as many antimicrobials.[7] Governments are [1] Interagency Coordination Group (IACG) people as possible to stop using also paying more attention to the on Antimicrobial Resistance (2019), ‘No Time tobacco, the solution for the control issue. At a UN General Assembly high- to Wait: Securing the future from drug-re- of antibiotic resistance is to stop the level meeting devoted to antimicrobial sistant infections’, https://www.who.int/ misuse or overuse of antibiotics, not all resistance in 2016, heads of state antimicrobial-resistance/interagency-coordi- use. It would be critical to ensure that confirmed their commitment to taking nation-group/final-report/en/ interventions avoid impeding access a coordinated approach and pledged (accessed 11 May 2019).

22 Chatham House Expert Perspectives 2019 [2] Ibid. what needs to happen

[3] WHO (2018), ‘FAO/OIE/WHO — Antibiotic resistance Collaboration (Tripartite)’, is a complex problem https://www.who.int/zoonoses/con- that transcends borders cept-note/en/ (accessed 11 May 2019). and cannot be tackled [4] IACG (2019), ‘No Time to Wait’. by a single country or international agency. [5] WHO Framework Convention on Tobacco Control (2018), 2018 Global Progress Report — A coordinated, on Implementation of the WHO Framework multisectoral response Convention on Tobacco Control, Geneva: is needed, with global- WHO, https://www.who.int/fctc/reporting/ level governance. WHO-FCTC-2018_global_progress_report.pdf (accessed 11 May 2019). — Current multilateral [6] Laxminarayan, R., Matsoso, P., Pant, S., guidance identifies many Bower, C., Røttingen, J. A., Klugman, K. and evidence-based interventions, Davies, S. (2016), ‘Access to effective anti- but not all countries have the microbials: a worldwide challenge’, Lancet, capacity to adopt them all. 387(10014): pp. 168–75, doi:10.1016/S0140- 6736(15)00474-2 (accessed 11 May 2019). — A legally binding global treaty may help [7] Padiyara, P., Inoue, H. and Sprenger, M. countries prioritize the (2018), ‘Global Governance Mecha- most feasible interventions, nisms to Address Antimicrobial Resist- while increasing political ance’, Infectious Diseases, 2018 (11), doi: will and providing an 10.1177/1178633718767887, https://www.ncbi. accountability mechanism. nlm.nih.gov/pmc/articles/PMC5900814/ (accessed 11 May 2019). — If its proposed

[8] WHO (2019), ‘Ad-hoc Interagency Coor- provisions fall under the dination Group on Antimicrobial Resistance’, mandates of more than http://www.who.int/antimicrobial-resist- one agency, the treaty ance/interagency-coordination-group/en/ might best be negotiated (accessed 11 May 2019). under the UN.

[9] WHO, FAO and OIE (2017), ‘Global Frame- work for Development & Stewardship to Com- bat Antimicrobial Resistance Draft Roadmap’, http://apps.who.int/medicinedocs/en/m/ abstract/Js23198en/ (accessed 11 May 2019).

Global perspectives Preserve the Effectiveness of Antibiotics with a Global Treaty 23 07. trade and finance

RENEW THE BRETTON WOODS SYSTEM

by Stephen Pickford

The gradual disintegration of the global rules- based economic order requires a new ‘Bretton Woods’ conference to reaffirm the benefit for all countries of internationally accepted, treaty- based economic relationships – and to reinvent the institutions to manage those rules.

24 Chatham House Expert Perspectives 2019 towards the end of the Second Development Association (IDA) arm For example, China has in place signif- World War, the Allied powers came to- in 1960, the bank became a major icant capital controls; and emerging gether in 1944 to plan a new economic channel for development grants and markets have challenged the IMF’s order for the post-war world which concessional loans from rich countries policies on international capital move- would avoid a repeat of the disastrous to the new emerging economies and ments. Second, emerging markets have policy mistakes of the 1920s and 1930s. the developing world, and it played responded by setting up institutions to At the conference[1] in Bretton a large role in setting the agenda rival the IMF and World Bank. Examples Woods, New Hampshire, 44 Allied coun- for development policies. include the so-called ‘BRICS Bank’,[8] tries met under the intellectual leader- But these institutions, and the the Chiang Mai Initiative (CMI)[9] and, ship of Harry Dexter White (a senior US rules that they manage, have not most recently, the Asian Infrastructure Treasury official) and John Maynard adapted quickly enough over the Investment Bank (AIIB).[10] Keynes. The conference envisaged new last decade to the changing world At the same time, many advanced rules of the game to prevent countries order, and to the growth of popu- countries have seen the rise of pop- following the ‘beggar-thy-neighbour’ lar discontent with globalization ulism, and dissatisfaction with what policies that had led to the Great and internationalism. many consider the damaging effects Depression. It also established the Emerging markets and developing of globalization. This is most marked International Monetary Fund (IMF) and countries have been the major engine in the area of trade, where many coun- World Bank[2] as the key institutions to for global growth for many years. Over tries (led by the US) are reintroducing manage this new world order. the past decade they have grown as trade controls. But it has also had an This new structure was initially suc- a group by around 5 per cent a year impact on monetary cooperation and cessful[3] in allowing the world to recov- on average,[5] compared with growth development. Countries are accused er after the war. The IMF put in place of less than 2 per cent a year for of starting ‘currency wars’.[11] And gov- fixed exchange rates based around the advanced economies. And China has ernments have become more reluctant dollar, and provided finance to allow now overtaken the US as the world’s to commit funds for aid. countries to make necessary adjust- largest economy.[6] As organizations set up by inter- ments to their balance of payments However, governance changes national treaty, the Bretton Woods provided that they followed sound at the IMF and World Bank have not institutions are reliant on international domestic economic policies. The World kept pace with economic reality. At economic cooperation, support for Bank provided long-term loans to allow the IMF, the US has over 16 per cent which is the bedrock of the system. post-war reconstruction, including in of the voting power while China has To tackle this erosion of support, a new support of the Marshall Plan. only 6 per cent; and the G7 group of ‘Bretton Woods’ conference is needed. Over the subsequent 50 years advanced economies, accounting for As with its predecessor in 1944, its aim the structure of the global economy 30 per cent of world output, have over would be to reaffirm the benefits for all changed rapidly. The IMF and World 40 per cent of the voting power. The countries of international cooperation Bank reinvented themselves over that World Bank has similar disparities, rather than unilateralism. Specifically, period to adapt to these changes. The and within IDA the donor countries its tasks would be the following: IMF responded to the move to a largely (the ‘Part I’ countries) control 55 per floating exchange rate system (pre- cent of the voting power. Moreover, 1. Renew the intellectual cipitated by the US decision in 1971 to since the creation of the two insti- basis for the institutions end convertibility of the dollar to gold) tutions, the convention has been For the IMF, the challenge would by extending its surveillance, and maintained that the US appoints the be to review and amend Article 1 of its conditions for loans, to all major head of the World Bank,[7] and that its founding Articles. This sets out aspects of economic and financial the head of the IMF is a European. the purpose of the IMF: to promote policy. It also played a major role in While small steps have been taken international monetary cooperation; developing and implementing the to reduce the degree of control that the to facilitate international trade and ‘Washington consensus’.[4] advanced economies exercise, emerg- contribute to economic growth and The World Bank shifted its focus ing markets and developing countries employment; to avoid competitive from post-war reconstruction in have been increasingly frustrated at exchange rate depreciation; and to Europe (financed by borrowing the lack of progress. This has had two provide loans to countries to allow from capital markets) to playing consequences. First, the larger emerging them to adjust their economic policies. a key role in development. With markets feel less constrained by the Article 1 embodies assumptions the creation of its International rules and norms of the institutions. about good economic management.

Global perspectives Renew the Bretton Woods System 25 But the erosion of the ‘Washington And there are risks to reopening [8] The ‘New Development Bank’ set up consensus’, the support for the the underlying basis for the institu- by the BRICS countries in 2014. ‘Occupy’ movement, questioning of tional structure. Without a clear path [9] The CMI was set up in response to the the capitalist system, and the challenge forward, the existing structure could perceived lack of even-handedness in the from climate change to the primacy be weakened and the institutions’ IMF’s handling of the Asian financial crisis of economic growth as an objective ability to continue operating could in the 1990s, and in response to pressure all point to the need for a broad debate be compromised. for an ‘Asian Monetary Fund’. on different economic models. But the current challenges re- For the World Bank, the challenge quire a substantial rethink of the [10] The AIIB started operations in 2016; Chi- is for donor countries to put IDA on to international economic and financial na is the major source of funding for the bank. a permanent statutory basis, instead of architecture. Incremental changes are the current three-year replenishment unlikely to be able to address these [11] A term first coined by Brazil in complaint cycle. But also the ‘division of labour’ challenges. And without changes, about dollar weakness. between the World Bank and the the Bretton Woods institutions – and [12] At present the US, with over 15 per cent regional development banks is unclear. the international economic system that of the voting power, has to approve the most The lack of precision is inefficient and they support – will continue to erode, fundamental changes to the institutions. a waste of aid resources. The confer- until at some point they break. ence would be a valuable opportunity to redesign the overall aid architecture. what needs to happen stephen pickford is an associate fellow with the Global 2. Achieve fundamental — A new ‘Bretton Woods’ Economy and Finance Department reform of institutional conference should redraft the at Chatham House. governance institutional basis of the IMF For both the IMF and World Bank, and World Bank, and reaffirm three fundamental aspects of govern- References support for international ance should be reviewed. First, the [1] The United Nations Monetary and Finan- economic cooperation. financial basis of each institution needs cial Conference. to be addressed, as this determines — Article 1 of the IMF’s [2] The World Bank Group’s primary arms in- voting power. A sustainable financial founding Articles should clude the International Bank for Reconstruc- system needs to adapt to changes in be amended to incorporate tion and Development (IBRD), established in economic circumstances, in particular new thinking on different 1944; the International Finance Corporation to recognize the growing economic economic models. (IFC), established in 1956; and the Inter- weight of the emerging markets. national Development Association (IDA), Second, the composition and structure — World Bank donor established in 1960. of the institutions’ executive boards also countries need to put IDA on need to adapt. Third, the current infor- [3] See, for example, James, H. (1996), Inter- to a permanent statutory basis, mal arrangements, based on nation- national Monetary Cooperation Since Bretton replacing the current three- ality, for appointing the heads of the Woods, IMF and Oxford University Press. year replenishment cycle. IMF and World Bank do not necessarily result in the best person for the job. [4] The term was coined by John Williamson — Voting rights need to be to describe policies developed during the further reviewed, to recognize Risk vs reward Latin American crisis of the 1980s, but has the economic weight of There are clear blocks to such fun- come to be regarded as a set of neoliberal emerging markets. damental change. The US would see free-market principles. a challenge to its ‘supermajority’,[12] and [5] IMF (2019), World Economic Outlook, — The executive boards of most other advanced economies would April 2019. the IMF and World Bank need also lose influence at the two insti- reform of both composition tutions. Emerging markets would be [6] By GDP, measured on a purchasing- and structure. The existing challenged to take more responsibility, power-parity basis. system of appointing the head in economic management and aid pol- of each institution based [7] David Malpass was appointed in April icy for example, in exchange for more on nationality should also 2019 for a five-year term as president of power at the IMF and World Bank. be discarded. the World Bank.

26 Chatham House Expert Perspectives 2019 08. trade and finance

RETHINK THE WTO’S ROLE IN A DIGITAL, DIVIDED WORLD

by Matthew Oxenford

The strains facing the WTO are not easily resolved. However, as momentum for trade liberalization has historically come from ‘coalitions of the willing’ – based on sectoral and plurilateral interests – this should be the priority for policy action.

Global perspectives Rethink the WTO’s Role in a Digital, Divided World 27 the world trade organization economies of the US, the EU, Japan of further negotiations and liber- (WTO) faces arguably the most acute and Canada – termed the ‘Quad’ by alization would consistently create challenge in its 24-year history. Since trade negotiators for their pivotal new agreement and clarity, limiting the election of Donald Trump in 2016, role in driving forward past rounds of the need for supranational dispute a US administration hostile to multilat- trade liberalization – were at the peak settlement beyond basic interpretation eralism and tempted by protectionism of their influence. Their leadership of continuously updated rules. Instead, has worked to undermine the WTO acted as an accelerant to global trade the combination of the greater central- by leaving the body on the brink of integration, encouraging countries ity of developing economies, such as being unable to perform one of its to join the General Agreement on China and India, in the trading system central roles: adjudicating the rules Tariffs and Trade (GATT), the WTO’s and in trade negotiations with the shift of global trade. If the immediate crisis predecessor. Whereas the initial GATT towards binding rules – which made weren’t enough, structural shifts in rounds of trade negotiations had the stakes of negotiating the rules markets have raised questions about involved fewer than 30 members, by themselves higher – rendered consen- the long-term suitability of the WTO 1994 the total had risen to 123, eventu- sus in new rounds of trade negotia- as a rules-based order for international ally rising to 164 in the WTO today.[1] tions impossible to achieve. As a result, commerce. What, given certain con- trade liberalization and negotiations straints inherent to the WTO system, The growing ground to a halt, and – as can be seen are the options for reform? in today’s tensions – US concerns over During the 2016 US presidential trade in infringement of sovereignty campaign, trade was a prime target re-emerged in force. of Trump’s populist electioneering. ‘intangible The WTO’s effectiveness has fur- While the president subsequently has ther been undermined by developments not – or, at least, not yet – followed goods’ is in technology, which have changed the through on a campaign threat to with- nature of global trade. Between 2005 draw the US from the WTO altogether, blurring the line and 2015, cross-border digital trade his administration has prevented the between goods increased 45-fold. E-commerce now Appellate Body of the WTO’s Dispute accounts for 12 per cent of consumer Settlement Body, a central component and services. goods trade.[3] The growing trade in of the multilateral trading system, ‘intangible goods’ – including down- from functioning properly. The US This fleeting moment of political loadable consumer content, software, has blocked the nomination of new and ideological unity allowed the WTO data and other digital intellectual Appellate Body members, whose to be structured to address many of the property – is blurring the line between appointment requires unanimous perceived failings of the GATT. In par- goods and services. Physical goods are consent. In December 2019, the four- ticular, the GATT system, which had now also more likely to have services year terms of two of the body’s three allowed significant exemptions and embedded in them, for example current members will expire, leaving it ambiguous opt-outs for countries, was through service contracts, software without a quorum to make decisions. superseded by the more standardized or leasing arrangements. This makes However, the WTO had profound ‘single undertaking’ system and bind- goods trade more dependent than ever difficulties even prior to this situation, ing dispute settlement.[2] The WTO before on complicated ‘behind the bor- many of which can be traced back to also made dispute resolution more der’ regulatory issues more commonly the period around the institution’s efficient by moving from a system re- associated with services. founding in 1995 and which inform quiring unanimous approval to enforce While the WTO’s ambitions the current crisis. The WTO took a ruling to one requiring unanimity have always included liberalizing shape at a singular historical mo- only when blocking a decision. services trade, as an institution it ment. The 1990s were a period when However, the ‘one size fits all’ remains ill-suited to responding the consensus on the desirability of inflexibility of the WTO system creat- to this evolution. Services trade trade liberalization was arguably at ed significant strain. Major economies, liberalization increasingly hinges its strongest since the Second World particularly the US, had reservations on regulatory convergence around War; global communism had just col- about the constraints on sovereignty the services offered, a more difficult lapsed, while developing economies implied by compliance with binding area in which to achieve compromise in Asia and Latin America were mak- dispute settlement. The promise of than trade in goods. Whereas tariffs ing significant market reforms. The the WTO was that a steady stream on goods can be adjusted through

28 Chatham House Expert Perspectives 2019 one-off changes in government under the Bank for International this way, industry-driven ‘bottom policy, negotiations over services Settlements (BIS) in 1992, and up’ approaches could make it easier trade involve continuous harmoniza- more recently through the Financial to overcome political obstacles tion of ever-evolving supranational Stability Board (FSB), was primarily to reform. With banking, for standards. As an international body designed to ensure a minimum level of example, all the players involved are operating by consensus, the WTO regulatory harmonization between ju- already agreed on the benefits of cannot guarantee this convergence risdictions.[5] Yet one of the additional coordination, and it is in everyone’s will occur. Additionally, the WTO’s consequences of this standardization interests to develop common global framework for services trade – en- was the reduction of many regulatory regulations. Should stronger or shrined in the General Agreement on barriers, which ultimately allowed different regulation be needed Trade in Services (GATS) – divides finance to become one of the most (as was the case after the 2008 services trade into four ‘modes of globalized service sectors. Ironically, financial crisis), the framework for supply’, yet increasing amounts of dig- this occurred despite the lack of agreeing adjustments already exists. ital trade fit neatly into none of these formal trade agreements containing Similar forums exist in many other categories.[4] As a result, the GATS robust financial services chapters. professional service sectors, as well rules are increasingly unwieldy in as in digital governance. Working the modern economy. The most likely with governments, these specialist organizations could help to gain Towards coalitions route to success buy-in from their members on the of the willing development of new trade policies If there is to be any further mo- may lie not with and rules for their sectors. This in turn mentum for trade liberalization, its could help to ensure the cooperation advocates must first be realistic in the WTO, but of governments responsible for their ambitions and recognize that regulatory convergence. global trade governance has gone with sector- Plurilateral agreements, too, beyond what is politically sustaina- specific forums provide potential scope for greater ble. The WTO’s ‘single undertaking’ ambition. The Trade in Services model required an unrealistic level and plurilateral Agreement (TiSA), in negotiation since of sustained consensus among its 2012, approaches the liberalization members. Allowing for greater agreements of trade in services on a selective flexibility in member state obligations basis – starting with a smaller group would acknowledge this, even if the involving limited of negotiating parties (including the price of reform is less harmonized coalitions Quad) that wish to pursue deeper dispute settlement. Such a move is service-sector liberalization. TiSA is likely to be inevitable, given evidence of states. unlikely to progress during the Trump that supranational dispute settlement presidency. However, if a less hostile remains controversial beyond the Could variations on the financial in- administration arrives in Washington, WTO. The problem, however, is that dustry model be applied more widely? this sort of agreement has a better as trade becomes ever more orient- Implementation of Basel and FSB rules chance of success than might another ed towards services and intangible depends on global support within the WTO negotiating round. Moreover, it goods, the need for common rules will industry and among regulators, yet the would still cover over 70 per cent of only grow. The most likely route to same precondition is likely to apply to global services trade,[6] while creating success may lie not with the WTO, but regulatory convergence in almost any a set of common standards for other with sector-specific forums and pluri- service sector. There is thus no obvious countries to build on. Indeed, even un- lateral agreements involving limited reason why similar harmonization der the Trump administration, the US coalitions of states. of standards could not be achieved is one of 76 WTO members beginning One example of qualified suc- through professional or industry bod- to negotiate a plurilateral agreement cess in sector-specific regulatory ies in other regulated service sectors, on e-commerce. harmonization can be seen in the in order to facilitate and regulate In this future, the WTO will have development of common banking cross-border trade. a diminished but real role to play: standards. This process, first through By empowering global, sector- acting as a repository and negotiating the so-called ‘Basel’ mechanism specific standard-setting bodies in forum for plurilateral agreements,

Global perspectives Rethink the WTO’s Role in a Digital, Divided World 29 performing a monitoring and data col- [5] Bank for International Settlements (2018), — Plurilateral processes, lection role, and developing common ‘Basel Committee Charter’, 5 June 2018, selectively involving coalitions standards on the goods trade and tariff https://www.bis.org/bcbs/charter.htm. of states committed to similar liberalization still within its remit. goals, can provide scope [6] Matthews, B. C., Wayne, E. A. and Pan, C. Major international organizations for raising policy ambition. (2018), ‘Trade in Services Agreement: A Way have adapted to this sort of reduced A good example is the Trade Out of the Trade War?’, Atlantic Council blog, remit in the past: after the breakdown in Services Agreement (TiSA). 23 July 2018, https://www.atlanticcouncil. of the Bretton Woods system, the org/blogs/new-atlanticist/trade-in-services- International Monetary Fund found its — With a diminished agreement-a-way-out-of-the-trade-war. mandate similarly diminished, but was role as a rule-setter, the able to reinvent itself as a lender of last WTO would likely focus resort and as a provider of liquidity on providing a forum for in a more flexible, dynamic monetary what needs to happen negotiation in more limited system. It is not implausible that, after sectors and a repository for some time in the political wilderness, — The WTO is unlikely plurilateral agreements, as the WTO could similarly reinvent to achieve consensus well as on monitoring and itself in a newly dynamic global on a resolution to the data collection. trade system. dispute-settlement impasse. Securing political support for continued matthew oxenford is a research trade liberalization associate with the Global Economy should be prioritized over and Finance Department at the preservation of the Chatham House. existing structure.

References — As trade involves [1] WTO (undated), ‘The GATT years: from ever more services Havana to Marrakesh’, https://www.wto. and intangible goods, org/english/thewto_e/whatis_e/tif_e/ progress on governance fact4_e.htm. may be more achievable through sector-specific [2] Baldwin, R. (2016), ‘The World Trade forums and plurilateral Organization and the Future of Multilateral- agreements than through ism’, Journal of Economic Perspectives, 30(1), full WTO negotiations. Winter 2016, pp. 95–116, https://www.uam. es/personal_pdi/economicas/cllano/master_ — Regulatory harmonization ec_intern/Baldwin%202016%20Future%20 conducted by single sectors of%20WTO%20and%20Multilateralism.pdf. such as banking offer [3] Manyika, J., Lund, S., Bughin, J., Woetzel, a potential template for other J., Stamenov, K. and Dhingra, D. (2016), Digi- services industries to reduce tal Globalization: The New Era of Global Flows, the barriers to trade without McKinsey Global Institute, https://www.mck- a formal trade agreement. insey.com/~/media/McKinsey/Business%20 This would rely on empowering Functions/McKinsey%20Digital/Our%20 professional standard- Insights/Digital%20globalization%20The%20 setting bodies and leveraging new%20era%20of%20global%20flows/ mutually agreed interests. MGI-Digital-globalization-Full-report.ashx.

[4] GATS is the WTO’s set of rules on services governance.

30 Chatham House Expert Perspectives 2019 09. trade and finance

DRIVE GLOBAL ACTION ON MONEY- LAUNDERING

by Nigel Gould-Davies

As an inherently transnational activity, global money-laundering is perhaps the definitive problem in need of cross-border, rules-based cooperation. The G7 should lead the way.

Global perspectives Drive Global Action on Money-laundering 31 every year, owners of illicit are declared as natural persons, not le- change in budgets, personnel and skills. wealth send huge sums of money from gal entities.[3] These registries should Unlike other transnational crimes that it the countries where they made it to be standardized and interconnected to facilitates, such as terrorism or human jurisdictions where they can conceal facilitate cooperation. trafficking, money-laundering is rarely its origins. They can do so because Second, intermediaries need to an emotive issue for public opinion. laws, practices and intermediaries be regulated effectively. These are the Political leaders should therefore pro- in the receiving countries make individuals and companies (banks, vide the drive, direction and resources money-laundering safe and easy. and trust and company service needed to prioritize enforcement. They These arrangements abet criminality, providers, or ‘obliged entities’ in EU should also adequately fund research corruption and insecurity on a global terminology) that conduct the finan- that supports effective policy with scale. There is a clear, compelling cial, legal, accountancy, property and rigorous, evidence-based analysis and urgent case for closing this other administrative operations which of the scale of the threat, the forms it major governance gap. enable money to enter a country. takes, and the ways it is evolving. Transnational organized crime has Their customer due diligence should Over the past decade, a global long relied on the ability to launder include, in particular, establishing consensus has emerged that its earnings. But the issue goes much the identity of the beneficial owners money-laundering should be wider. Those who enrich themselves of the entities that they service. addressed more effectively. In 2012 through corrupt relationships and tax Regulatory authorities should incen- the Financial Action Task Force evasion routinely send the proceeds tivize intermediaries to internalize (FATF), the leading international to safer jurisdictions.[1] The scale of a culture of compliance. Too often, standards-setter in this area, agreed these outflows dwarfs international compliance is formulaic and ‘tick- new recommendations endorsed by aid budgets designed to support boxy’. Compare this with best practice nearly every country in the world. good governance. The provision by in high-physical-risk industries, Following this example, in 2014 the receiving states of what are, in effect, such as oil and gas. Here, the best G20 adopted ‘High Level Principles on corruption-protection services thus companies drive continuous safety Beneficial Ownership Transparency’. entrenches misgovernance. improvement in every aspect of their In 2015 and 2018, the EU agreed its 4th Corrupt financial inflows also pres- operations. This commitment is part and 5th Money Laundering Directives. ent a serious security threat by eroding of their corporate culture. Financial, The latter requires member states to financial integrity and international property and legal service providers establish public registries of beneficial reputation. But this security dimen- should adopt a similar mindset in ownership for corporate and other sion has been growing even more their management of compliance risk. legal entities by January 2020. severe. Much corrupt money flows But recent revelations, from from countries that seek to undermine Much corrupt leaks and whistle-blowers, have Western interests and values. The brought home the continued severity ability of elites in those countries to money flows of the problem. The 2016 Panama send assets to, and conceal them in, Papers investigation revealed multi- the West sometimes helps sustain from countries billion-dollar fraud, tax evasion authoritarian regimes. Some illegal and sanctions evasion hidden through financial inflows are used to interfere that seek to offshore companies. In 2018 Danske in election campaigns, co-opt local Bank, Denmark’s largest bank, was interests or take stakes in strategic undermine found to have processed $230 bil- companies. Money-laundering is also Western lion in suspicious transactions.[4] used to evade sanctions imposed to Revelations from scandals such as punish unacceptable behaviour.[2] interests these are likely to continue to emerge. Three steps are needed to make They demonstrate that the rules progress against international money- and values. governing financial inflows, and the laundering. First, a universal norm of resources devoted to their enforce- transparency needs to be established in Third, implementation needs to ment, remain inadequate in relation respect of the beneficial ownership of be properly resourced. Effective and to the scale of the challenge. corporate vehicles. Public registries of consistent enforcement even of current The priority now is to focus on bet- beneficial owners, bolstered with relia- laws and regulations will yield signif- ter outcomes by strengthening global ble data, must ensure that such owners icant gains. This will require a step norms, bringing national practices

32 Chatham House Expert Perspectives 2019 into line with them and, above all, abroad. This is a major gap in global what needs to happen developing the capacity to implement economic governance. On grounds them. While this is a global challenge, of ethics, policy consistency and securi- — A first priority in Western countries should take the lead. ty, it is time to close it.  strengthening anti- They, and the jurisdictions they control money-laundering efforts (like the UK Overseas Territories and is to establish a universal nigel gould-davies is an associate Crown Dependencies), are the major norm of transparent fellow with the Russia and Eurasia service providers for illicit transnation- beneficial ownership Programme at Chatham House. al financial flows. They also face the of corporate vehicles. biggest security threats from regimes that transfer assets overseas. And References — Public registries must Western progress will have a wider [1] van der Does de Willebois, E., Halter, E. ensure that beneficial demonstration effect by undercutting M., Harrison, R. A., Park, J. W. and Sharman, owners are declared as excuses made by others for resisting J. C. (2011), The Puppet Masters: How the natural persons, not legal higher standards. Established best Corrupt Use Legal Structures to Hide Stolen entities. These registries practice can also provide the basis Assets and What to Do About It, Washington should be standardized for peer assistance and technical DC: World Bank. and interconnected to support to other states. facilitate cooperation. [2] See FACT Coalition (2019), ‘FACT Sheet: Anonymous Companies and National — Intermediaries need At present, Security (May 2019)’, 17 May 2019, to be regulated effectively. https://thefactcoalition.org/fact-sheet-anon- Mandatory due diligence there is far ymous-companies-and-national-securi- should include establishing ty-may-2019?utm_medium=policy-anal- more scrutiny the identity of beneficial ysis/fact-sheets; and Fuller, C. R. (2019), owners of the entities serviced. of how money is ‘Financial transparency is not only about rule of law but also national security’, American — Effective implementation Enterprise Institute, 12 March 2019, https:// made than how and enforcement will require www.aei.org/publication/financial-transpar- much greater resourcing. it is moved. ency-is-not-only-about-rule-of-law-but-al- Political leaders should drive so-national-security/. The most attractive destina- this process, including ensuring tions of all for illicit money are the [3] For a discussion of progress towards adequate funding for research. US and the UK, with their highly beneficial ownership transparency, and the developed financial and facilitation challenges that remain, see Adam Smith — Western countries should industries, traditions of light-touch International (2019), Towards a Global take the lead in strengthening regulation and strong rule of law. Norm of Beneficial Ownership Transparency: global norms, ensuring Their G7 presidencies in 2020 and A scoping study on a strategic approach to national-level compliance 2021 respectively are a natural achieving a global norm, https://issuu.com/ and developing capacity. opportunity to demonstrate sustained adamsmithinternational/docs/towards_a_ Established best practice can global leadership in efforts to counter global_norm_of_beneficial_9f6920e1f- provide the basis for peer illegal financial flows. Both coun- ce9a4?e=17200343/68429367. assistance and technical tries should make the achievement support to other states. of further progress in establishing [4] Sorensen, M. S. (2019), ‘Estonia Orders robust global anti-money-laundering Danske Bank Out After Money-Laundering — The G7 presidencies of rules, and effective implementation, Scandal, New York Times, 20 February 2019, the US and the UK, in 2020 a priority of their presidencies. https://www.nytimes.com/2019/02/20/busi- and 2021 respectively, offer At present, there is far more scru- ness/danske-bank-estonia-money-laundering. a natural opportunity tiny of how money is made than how html; and Danske Bank (2018), ‘Findings of the to demonstrate global it is moved. And the West demands investigations relating to Danske Bank’s branch leadership. Both countries higher anti-corruption standards of its in Estonia’, press release, 19 September 2018, should use their terms own companies overseas than it does https://danskebank.com/news-and-insights/ to strengthen rules and of foreign money that flows in from news-archive/press-releases/2018/pr19092018. implementation.

Global perspectives Drive Global Action on Money-laundering 33 10. trade and finance

DEMOCRATIZE TRADE POLICYMAKING TO BETTER PROTECT HUMAN RIGHTS

by Jennifer Zerk

There is growing interest in the use of human rights impact assessment to screen proposed trade agreements for human rights risks, and to ensure appropriate risk mitigation steps are taken.

34 Chatham House Expert Perspectives 2019 with international trade ‘sustainability impact assessment’ are many challenges around the need discourse taking an increasingly of future trade agreements provides to engage with affected people and transactional and sometimes belliger- a potential model to draw from.[6] listen to their views.[10] The sheer ent tone, it would be easy to overlook However, process is no substi- number of possible impacts of a trade the quiet revolution currently under tute for action. Human rights impact agreement on different individuals way to bring new voices into trade assessment is never an end in itself; and communities, as well as the policy development and monitoring. rather, it is a means to a positive range of rights potentially engaged, The traditional division of respon- end, in this case a trade agreement makes this a difficult (some would say sibilities between the executive and which is aligned with the trading impossible) task. Some prioritization legislature – whereby treaties are partners’ respective human rights is always necessary. negotiated and signed by the execu- obligations and aspirations. It bears This makes for difficult decisions tive, and the legislature does what is remembering, though, that the idea about who to engage with and how. necessary to implement them – may of assessing trade proposals for future Perceived bias or an apparent lack be undergoing some change. Growing human rights risks is a relatively of even-handedness – favouring busi- awareness of the implications of trade recent one. Do we have the tools ness compared to civil society, for in- and investment treaties for many and resources to make sure that this stance – can sow mistrust about the aspects of day-to-day life – food stand- is a meaningful compliance and risk true aims of such a process, under- ards, employment opportunities, management exercise? mining its future effectiveness as par- environmental quality, availability of ticipants begin to question whether medicines and data protection, just Human it is genuine or worthwhile.[11] The to name a few – is fuelling demands challenges are even more acute where by people and businesses for more of rights impact impact assessment practitioners are a say in the way these rules are formu- tasked with investigating poten- lated and developed. assessment is tial human rights impacts in other Various options for enhancing countries. Even if it is possible to get public and parliamentary scrutiny never an end in past the inevitable political sensitiv- of trading proposals have recently ities,[12] the sort of in-depth consul- been examined by two UK parlia- itself; rather, tations required will be beyond the mentary select committees.[1] The it is a means to budget and time constraints of most reason for this interest is obviously assignments.[13] Brexit, which has presented UK a positive end. There are good reasons why civil servants and parliamentarians trade policy should be subject to great- with the unusual (some would say Thus far there is little evidence er public and parliamentary scrutiny, exciting) opportunity to design an that human rights impact assessment and why there should be more oppor- approval and scrutiny process for trade and stakeholder engagement exer- tunities for public participation in the agreements from scratch. Doubtless, cises are having any real impact on formation of new trading regimes. By EU authorization, liaison and ap- the content of trade agreements.[7] building more opportunities for stake- proval procedures (which include This is the case even in the EU, where holder consultation at these stages, we a scrutinizing role for the European practice in these areas is the most can acquire perspectives on trade that Parliament) will be influential,[2] advanced and systematic.[8] There are not available from other forms of as will the European Commission’s are several possible reasons for this. assessment and analysis. experience with stakeholder en- First, the methodological challenges However, policymakers should gagement on trade issues.[3] The are enormous. Aside from the crys- be wary of overstating the benefits recommendations of both UK select tal-ball gazing needed to forecast the of existing procedural models. Human committees to include human rights social, economic and environmental rights impact assessment processes impact assessment processes as part effects of a trade intervention well are still struggling to provide com- of pre-negotiation preparations[4] into the future, demonstrating causal pelling analyses of the relationships echo calls from UN agencies and NGOs links between a trade agreement and between trade agreements and for more rigorous and timely analysis a predicted adverse impact is often the enjoyment of human rights, let of the human rights risks that may be highly problematic given the number alone a roadmap for policymakers posed by new trading relationships.[5] of other economic and political factors and trade negotiators as to what Again, EU practice with what it terms that may be in play.[9] Secondly, there should be done.[14] And financial

Global perspectives Democratize Trade Policymaking to Better Protect Human Rights 35 and practical barriers to participation where the human rights implications Parliamentary scrutiny of trade policies in stakeholder engagement exercises are so clear that they can readily be ad- across the western world, study paper, March mean that, at best, these will provide dressed through upfront commitments 2019, http://www.europarl.europa.eu/ only a partial picture of stakeholder by the parties concerned, whether by RegData/etudes/STUD/2019/603477/EXPO_ impacts and views. bespoke or standardized approaches. STU(2019)603477_EN.pdf. More often, though, for a trade agreement running many years into [3] European Commission (2019), ‘Trade For a trade policy and you’, http://ec.europa.eu/trade/ the future, human rights impacts agreement and implications will take time to trade-policy-and-you/index_en.htm. emerge, suggesting the need for [4] See UK Joint Committee on Human running many robust monitoring and mitigation Rights (2019), ‘Human Rights Protections frameworks designed with longevity in International Agreements’, para 12; and years into in mind. Ideally, pre-signing approval House of Commons International Trade Com- the future, and assessment processes would lay mittee (2018), ‘UK Trade Policy Transparency the groundwork for future action by and Scrutiny’, paras 124–34. human rights both trading partners, either jointly or separately (though preferably both). [5] OHCHR (2003), Report of the High impacts and To this end, as well as developing ideas Commissioner for Human Rights on Human for more robust substantive provisions Rights, Trade and Investment, 2 July 2003, E/ implications on human rights, policymakers should CN.4/Sub.2/2003/9, Annex, at para 63; UN consider the institutional arrange- Economic and Social Council (2017), ‘Gener- will take time ments required – whether pursuant to al Comment No 24 (2017) of the Committee to emerge, the trade agreement or by complemen- on Economic, Social and Cultural Rights on tary processes – to ensure that human State obligations under the International suggesting the rights-related risks identified during Covenant on Economic, Social and Cultural the planning stages are properly and Rights in the context of business activities’, need for robust proactively followed up, that emerging UN Doc. E/C.12/GC/24, 10 August 2017, risks are tackled in a timely fashion, para 13; and UN General Assembly (2011), monitoring and that there are opportunities for ‘Guiding principles on human rights impact meaningful stakeholder contribu- assessment of trade and investment agree- and mitigation ments’, Report of the Special Rapporteur tions to these processes.  frameworks. on the Right to Food, Olivier De Schutter, UN Doc. A/HRC/19/59/Add.5, 19 Decem- jennifer zerk is an associate Experiences with human rights ber 2011. fellow with the International Law impact assessment of trade agreements Programme at Chatham House. [6] European Commission (2016), Hand- so far demonstrate the need for realism book for Sustainability Impact Assessment about two things: first, the extent to (2nd ed.), Brussels: European Union, which one can sensibly anticipate and References http://trade.ec.europa.eu/doclib/docs/2016/ analyse human rights-related risks and [1] UK Joint Committee on Human Rights april/tradoc_154464.PDF. opportunities in the preparation stages (2019), ‘Human Rights Protections in for a new trading agreement; and, International Agreements, Seventeenth [7] Zerk, J. (2019), Human Rights Impact As- second, the extent to which problems Report of Session 2017–19’, HC 1833 HL sessment of Trade Agreements, Chatham House identified in this way can be headed paper 310, 12 March 2019, https://publica- Research Paper, London: Royal Institute of off with the right form of words in tions.parliament.uk/pa/jt201719/jtselect/ International Affairs, https://www.chatham- the treaty itself. Both recent UK select jtrights/1833/1833.pdf; and House of Com- house.org/sites/default/files/2019-02-18Hu- committee reports place considerable mons International Trade Committee (2018), manRightsTradeAgreements.pdf. faith in the ability of pre-project trans- ‘UK Trade Policy Transparency and Scrutiny, [8] Ibid., pp. 11–13. For a detailed explana- parency and scrutiny processes to flush Sixth Report of Session 2017-2019’, HC 1043, tion of the EU’s approach to human rights out potential problems and prescribe 29 December 2018. impact assessment, see European Commis- solutions. Of course, there may be cas- [2] European Parliament and Directo- sion (2016), Handbook for Sustainability es where frontloading the analysis in rate General for External Policies (2019), Impact Assessment. this way could be useful, for instance

36 Chatham House Expert Perspectives 2019 [9] Zerk (2019), Human Rights Impact Assess- what needs to happen ment of Trade Agreements, pp. 14–21. — Trade policymakers [10] Ibid., pp. 21–22. can use human rights [11] Ergon Associates (2011), Trade and impact assessment to Labour: Making effective use of trade sustain- screen proposed trade ability impact assessments and monitoring treaties for human rights- mechanisms, Final Report to DG Employment, related risks and to identify Social Affairs and Inclusion European Com- possible ways of mitigating mission, September 2011; and Gammage, C. those risks, whether through (2010), ‘A Sustainability Impact Assessment the terms of the agreement of the Economic Partnership Agreements: itself, domestic law reform Challenging the Participatory Process’, Law or flanking measures. and Development Review, 3(1): pp. 107–34. For a civil society view, see Trade Justice Move- — Building more opportunities ment (undated), ‘Trade Justice Movement for stakeholder consultations submission to the International Trade Com- can enable perspectives on mittee inquiry into UK Trade Policy Trans- trade to be highlighted that parency and Scrutiny’, https://www.tjm.org. are not available from other uk/documents/briefings/TJM-submission-to- forms of assessment. ITC-inquiry-into-UK-Trade-Policy-Transparen- cy-and-Scrutiny.pdf, esp. paras 23–32. — Assessment is complicated, however, by [12] Zerk (2019), Human Rights Impact Assess- methodological challenges ment of Trade Agreements, pp. 20–21. and the difficulties of

[13] Ibid., pp. 21–22. forecasting a trade agreement’s future impacts. [14] Ibid. Policymakers need to be realistic about the risks that can be anticipated, and the extent to which many of those identified can be addressed upfront in trade agreements’ terms.

— These inherent limitations may be overcome to some extent by better ongoing monitoring. Future trade agreements should include more robust human rights risk monitoring and mitigation frameworks, designed with longevity in mind.

Global perspectives Democratize Trade Policymaking to Better Protect Human Rights 37 11. technology

TACKLE THE ‘SPLINTERNET’

by Marjorie Buchser and Joyce Hakmeh

Competing governance visions are impairing efforts to regulate the digital space. To limit the spread of repressive models, policymakers in the West and elsewhere need to ensure the benefits of an open and well-run system are more widely communicated.

38 Chatham House Expert Perspectives 2019 the development of governance Cyberspace and AI – a US-sponsored resolution established in a wide range of digital spheres – two case studies a GGE tasked, in part, with identify- from cyberspace to internet infrastruc- Two particular case studies high- ing ways to promote compliance with ture to emerging technologies such as light the essential challenges that existing cyber norms. Each resolution artificial intelligence (AI) – is failing this evolving – and, in some respects, was in line with its respective promot- to match rapid advances in technical still largely unformed – policy land- er’s stance on cyberspace. While some capabilities or the rise in security scape presents. The first relates to observers considered these resolutions threats. This is leaving serious regula- cyberspace. Since 1998, Russia has potentially complementary, others tory gaps, which means that instru- established itself as a strong voice saw in them competing campaigns to ments and mechanisms essential for in the cyberspace governance debate – cement a preferred model as the global protecting privacy and data, tackling calling for a better understanding, norm. Outside the UN, there have also cybercrime or establishing common at the UN level, of ICT developments been dozens of multilateral and bilat- ethical standards for AI, among and their impact on international eral accords with similar objectives, many other imperatives, remain security. The country’s efforts were led by diverse stakeholders.[4] largely inadequate. a precursor to the establishment A starting point for effective policy in 2004 of a series of UN Groups of China has formation is to recognize the essential Governmental Experts (GGEs), aimed complexity of the digital landscape, at strengthening the security of global by far the and the consequent importance of cre- information and telecommunica- ating a ‘common language’ for multiple tions systems. These groups initially most ambitious stakeholders (including under-rep- succeeded in developing common resented actors such as smaller and/ rules, norms and principles around programme. or developing countries, civil society some key issues. For example, the 2013 and not-for-profit organizations). The GGE meeting recognized that interna- In 2017, its world’s evolving technological infra- tional law applies to the digital space government structure is not a monolithic creation. and that its enforcement is essential In practice, it encompasses a highly for a secure, peaceful and accessible released a three- diverse mix of elements – so-called ICT environment. ‘high-tech domains’,[1] hardware, However, the GGE process step strategy for systems, algorithms, protocols and stalled in 2017, primarily due standards – designed by a plethora of to fundamental disagreements achieving global private companies, public bodies and between countries on the right to dominance non-profit organizations.[2] Varying self-defence and on the applicability cultural, economic and political of international humanitarian law in AI by 2030. assumptions have shaped where to cyber conflicts. The breakdown and which technologies have been in talks reflected, in particular, The second case study concerns AI. deployed so far, and how they have the divide between two principal Emerging policy in this sector suffers been implemented. techno-ideological blocs: one, led from an absence of global standards Perhaps the most notable by the US, the EU and like-minded and a proliferation of proposed trend is the proliferation of techno- states, advocating a global and open regulatory models. The potential national regimes and private-sector approach to the digital space; the ability of AI to deliver unprecedented policy initiatives, reflecting often- other, led mainly by Russia and capabilities in so many areas of human incompatible doctrines in respect of China, emphasizing a sovereignty- activity – from automation and lan- privacy, openness, inclusion and state and-control model. guage applications to warfare – means control. Beyond governments, the The divide was arguably en- that it has become an area of intense interests and ambitions of prominent trenched in December 2018, with rivalry between governments seeking multinationals (notably the so- the passage of two resolutions at the technical and ideological leadership called ‘GAFAM’ tech giants in the UN General Assembly. A resolution of this field. West, and their ‘BATX’ counterparts sponsored by Russia created a working China has by far the most ambi- in China)[3] are significant factors group to identify new norms and tious programme. In 2017, its govern- feeding into this debate. look into establishing regular insti- ment released a three-step strategy tutional dialogue. At the same time, for achieving global dominance in

Global perspectives Tackle the ‘Splinternet’ 39 AI by 2030. Beijing aims to create nor indeed from the similar contests in 2018, India was the leading country an AI industry worth about RMB for doctrinal control in other digital in terms of internet shutdowns, with 1 trillion ($150 billion)[5] and is pushing domains. Concerns are rising that over 100 reported incidents.[8] India for greater use of AI in areas ranging a so-called ‘splinternet’ may be has also chosen to collaborate outside from military applications to the inevitable – in which the inter- the principal ideological blocs, as development of smart cities. Elsewhere, net fragments into separate open evidenced by an AI partnership it has the US administration has issued an ex- and closed spheres and cyber entered into with the UAE. At the UN ecutive order on ‘maintaining American governance is similarly divided. level, India has taken positions that leadership on AI’. On the other side of Each ideological camp is trying support both blocs, although more the Atlantic, at least 15 European coun- to build a critical mass of support often favouring the sovereignty-and- tries (including France, Germany and by recruiting undecided states to its control approach. the UK) have set up national AI plans. cause. Often referred to as ‘swing Although these strategies are essential states’, the targets of these overtures Principles for rule-making for the development of policy infra- are still in the process of developing Sovereign nations have asserted aspira- structure, they are country-specific and their digital infrastructure and deter- tions for technological dominance with offer little in terms of global coordina- mining which regulatory and ethical little heed to the cross-border implica- tion. Ominously, greater inclusion and frameworks they will apply. Yet the tions of their policies. This drift towards cooperation are scarcely mentioned, policy choices made by these countries a digital infrastructure fragmented and remain the least prioritized could have a major influence on the by national regulation has potentially policy areas.[6] direction of international digital gov- far-reaching societal and political Competing multilateral frameworks ernance in the future. consequences – and implies an urgent on AI have also emerged. In April 2019, need for coordinated rule-making at the European Commission published The lack of the international level. its ethics guidelines for trustworthy The lack of standards and en- AI. Ministers from Nordic countries[7] standards and forcement mechanisms has created recently issued their own declaration instability and increased vulnerabili- on collaboration in ‘AI in the Nordic- enforcement ties in democratic systems. In recent Baltic region’. And leaders of the G7 years, liberal democracies have been have committed to the ‘Charlevoix mechanisms targeted by malevolent intrusions Common Vision for the Future of in their election systems and media Artificial Intelligence’, which includes has created sectors, and their critical infrastructure 12 guiding principles to ensure instability has come under increased threat. If ‘human-centric AI’. More recently, Western nations cannot align around, OECD member countries adopted and increased and enforce, a normative framework a set of joint recommendations that seeks to preserve individual on AI. While nations outside the vulnerabilities privacy, openness and accountability OECD were welcomed into the through regulation, a growing number coalition – with Argentina, Brazil and in democratic of governments may be drawn towards Colombia adhering to the OECD’s systems. repressive forms of governance. newly established principles – China, To mitigate those risks, efforts to India and Russia have yet to join India offers a case in point. negotiate a rules-based international the discussion. Despite their global For now, the country seems to order for the digital space should keep aspirations, these emerging groups have chosen a versatile approach, several guiding principles in mind. remain largely G7-led or EU-centric, engaging with actors on various sides One is the importance of developing and again highlight the divide of the policy debate, depending on joint standards, as well as the need between parallel models. the technology governance domain. for consistent messaging towards the On the one hand, its draft Personal emerging cohort of engaged ‘swing The importance Data Protection Bill mirrors principles states’. Another is the need for persis- of ‘swing states’ in the EU’s General Data Protection tence in ensuring that the political, No clear winner has emerged Regulation (GDPR), suggesting civic and economic benefits associat- from among the competing visions a potential preference for the Western ed with a more open and well- for cyberspace and AI governance, approach to data security. However, regulated digital sphere are made

40 Chatham House Expert Perspectives 2019 clear to governments and citizens [4] Carnegie Endowment for Internation- — International norms everywhere. Countries advocating al Peace (undated), ‘Cyber Norms Index’, need to be updated and an open, free and secure model https://carnegieendowment.org/publica- reinterpreted to assert the should take the lead in embracing tions/interactive/cybernorms primacy of non-harmful and promoting a common affirmative (accessed 30 May 2019). applications of technologies model – one that draws on human and digital interactions. [5] Future of Life Institute (undated), ‘AI rights principles (such as the rights to Policy – China’, https://futureoflife.org/ freedom of opinion, freedom of expres- — This process should ai-policy-china/?cn-reloaded=1. sion and privacy) and expands their follow a multi-stakeholder applications to the digital space. [6] Dutton, T. (2018), ‘Building an AI World: approach to include under- Specific rules on cyberspace Report on National and Regional AI Strat- represented actors, such as and technology use need to include egies’, 6 Devember 2018, CIFAR, https:// developing countries and civil pragmatic policy ideas and models www.cifar.ca/cifarnews/2018/12/06/build- society, and should adopt of implementation. As this regulatory ing-an-ai-world-report-on-national-and-re- a gender-balanced approach. corpus develops, rules should be gional-ai-strategies. adapted to reflect informed consider- — The design of rules, ation of economic and social priorities [7] Including Denmark, Estonia, Finland, standards and norms and attitudes, and to keep pace with the Faroe Islands, Iceland, Latvia, Lithuania, needs to take into Norway, Sweden and the Åland Islands. what is possible technologically.[9]  account the essentially [8] Shahbaz, A. (2018), Freedom on the transnational nature of digital technologies. Rules, marjorie buchser is the Head Net 2018: The Rise of Digital Authoritarianism, standards and norms need of Innovation Partnerships Freedom House, October 2018, to be applicable consistently and Digital Society Initiative https://freedomhouse.org/report/free- across jurisdictions. at Chatham House. dom-net/freedom-net-2018/rise-digital-au- thoritarianism. — Developing countries joyce hakmeh is a Cyber Research [9] Google White Paper (2018), Perspectives should be supported in Fellow with the International on Issues in AI Governance, https://ai.goog- building their digital Security Department at Chatham le/static/documents/perspectives-on-is- infrastructure, and in House, and co-editor of the sues-in-ai-governance.pdf. increasing the capacity Journal of Cyber Policy. of governments and citizens to make informed policy References what needs to happen decisions on technology. [1] Including but not limited to AI and an associated group of digital technologies, such — Demystifying the salient as the Internet of Things, big data, blockchain, issues, consistent messaging quantum computing, advanced robotics, self- and the creation of a common driving cars and other autonomous systems, discourse are key to advancing additive manufacturing (i.e. 3D printing), a well-informed debate on social networks, the new generation of global digital governance. biotechnology, and genetic engineering. — The benefits associated [2] O’Hara, K. and Hall, W. (2018), Four with open and well-regulated Internets: The Geopolitics of Digital Govern- digital governance should ance, Centre for International Governance be clearly presented to all Innovation, CIGI Paper No. 206, stakeholders. For example, https://www.cigionline.org/publications/ the link between sustainable four-internets-geopolitics-digital-governance. development, respect for [3] GAFAM = Google, Amazon, Facebook, human rights and a secure, Apple and Microsoft; BATX = Baidu, Alibaba, free and open internet should Tencent and Xiaomi. take priority in the debate with developing countries.

Global perspectives Tackle the ‘Splinternet’ 41 12. sustainability

INCREASE CLIMATE AMBITION BY MAKING POLICY MORE INCLUSIVE

by Antony Froggatt and Catherine Hampton

Climate action within the UN framework is inadequate for meeting internationally agreed mitigation targets. Efforts to hold countries to account and boost ambition must mobilize a wider range of actors.

42 Chatham House Expert Perspectives 2019 the existing rules of engagement integrated, closed-door process of peer to convert its 16,000 buses to electric within the international climate review between countries – not a rules- power; plans are now under way to framework – the UN Framework based system per se, but a step towards require the same of its 22,000 taxis.[3] Convention on Climate Change greater accountability. (UNFCCC) – are proving inadequate Efforts to make NDCs more am- Efforts to for delivering the emissions reductions bitious will also require subnational needed, and at the pace necessary, to political support and sustained policy make NDCs meet recognized climate objectives. The momentum from non-state actors. 2015 Paris Agreement established na- The Talanoa Dialogue, established in more ambitious tional adaptation and mitigation plans, 2018, provides a platform for parties or Nationally Determined Contributions to the UNFCCC process (i.e. national will require (NDCs), in which countries committed governments) and non-parties alike to to decarbonize their economies over convene and discuss challenges. Local subnational the coming decades. While procedural governments, cities, businesses and political elements of this framework are legally NGOs – which often have practical binding, the crucial NDCs are volun- experience of developing and im- support and tary. Working within this essentially plementing climate mitigation and constrained rules-based order in adaptation measures – can showcase sustained policy climate policy, and given countries’ examples of low-carbon innovation reluctance to date to translate targets and policy change, potentially encour- momentum into structural reforms, what can be aging national governments to commit from non- done to uphold NDCs and raise future to bolder action. There remains, climate ambition? Part of the answer however, a need for subnational gov- state actors. is to engage more actors and mobilize ernments and non-state actors to go support more creatively. beyond the sharing of experiences Can such local initiatives be Four measures in particular must be and best practice. scaled up and coordinated internation- taken if the UNFCCC system is to meet ally? Climate-focused international the challenge of climate change. 2. Elevate the role networks of sub-state bodies – such as of local governments the C40 group of cities and the Global 1. Persuade countries The current arrangements for Covenant of Majors for Climate and to adopt more non-parties in the UNFCCC framework Energy – already exist. They now need ambitious targets are set to expire in 2020. This provides to be given a more substantial and The first is for countries to present an opportunity to shape the future legitimate role in shaping global tar- more ambitious mitigation plans, framework: strengthening and elevat- gets, via robust consultative processes so that deeper emissions cuts and ing the positions of sub-state actors that feed into national strategy and climate-smart technologies can be in both national and international international ambition. initiated within achievable time frames. processes will be key to increasing To increase action, the UN secretary- NDC ambition.[1] One way to achieve 3. Involve business, general has called for a climate summit this could be by defining their roles finance and civil society in September 2019. Capitalizing in the Global Stock Take within the The third tactic will be to make the on this opportunity, a small group Katowice ‘rulebook’, and by creating climate response architecture itself of climate-smart developing and ‘national stocktake’ moments that more robust. Non-state actors from developed countries should convene formally include their policy actions business, finance and civil society to draft a resolution on increasing in climate accounting.[2] could use the global climate policy NDC ambition to levels consistent A key rationale for empowering networks that link them – such as the with limiting global warming to subnational governments is that they Alliance of CEO Climate Leaders, the 1.5°C above pre-industrial levels. are more connected with people on Climate Action 100+, the Climate Maintaining NDC ambition the ground, see the effects of climate Action Network, etc. – to set up will require stronger monitoring of change more acutely, and are able to industry-specific charters on climate national commitments. The summit implement change more rapidly. For action, as has occurred within the could therefore also be used to create example, in Shenzhen, concerns over fashion industry.[4] These groups an NDC tracking mechanism with an air pollution spurred the Chinese city have the collective power to make

Global perspectives Increase Climate Ambition by Making Policy More Inclusive 43 a global difference: businesses can are turning to awareness-raising and antony froggatt is the acting promote climate-smart innovations non-violent civil disobedience to raise director of, and a senior research within their supply chains; investors the profile of climate issues. fellow with, the Energy, Environment can align their portfolios around Two recent examples in 2019 were and Resources Department at climate-related physical, transition the School Climate Strikes, in which Chatham House. and litigation risks; and civil society more than 1.6 million schoolchildren can help to establish system-wide in over 300 cities participated on catherine hampton is key performance indicators across a single day;[7] and the Extinction a programme coordinator with the multiple sectors and geographies. Rebellion movement. In the lat- Energy, Environment and Resources Elevating such activities within ter case, in the UK the protesters’ Department at Chatham House. existing processes will require, in turn, demands were not only for the a stronger accountability mechanism government to commit to extremely for climate commitments.[5] Building rapid emissions reductions (with References on the growing capacity to track net zero carbon by 2025), but for the [1] Galvanizing the Groundswell of Climate non-state action, UNFCCC parties and establishment of a new national-level Actions (GGCA) (2019), Summary of responses the UNFCCC secretariat should work governance mechanism in the form to consultation on the future of Global Cli- to ensure that designated High-Level of a people’s assembly. mate Action in the UNFCCC, https://static1. Champions are able to deliver on their squarespace.com/static/552be32ce4b- mandate to expand climate action. Adherence 0b269a4e2ef58/t/5c933cc80d92974a96a6903b This will likely require increasing the /1553153226292/27+GGCA.+Summary+of+- use of formal and informal ‘friends of to climate responses+on+the+future+of+Global+Cli- the Champions’ outside the UN system, mate+Action+March+2019+PUBLIC.pdf. and better integrating the work of the ‘rules’ must [2] Ibid. secretariat’s support unit with the broader climate action community. ultimately come [3] Keegan, M. (2018), ‘Shenzhen’s silent via a fourth revolution: world’s first fully electric bus fleet 4. Widen societal quietens Chinese megacity’, Guardian, 12 De- engagement way: sustained cember 2018, https://www.theguardian.com/ The three short-term strategies cities/2018/dec/12/silence-shenzhen-world- mentioned above, if successfully pressure by first-electric-bus-fleet. implemented, promise to improve the climate governance framework and citizens on [4] UNFCCC (2018), ‘Milestone Fash- create new pathways for greater ambi- ion Industry Charter for Climate Action tion. However, the fact that NDCs are national launched’, press release, 10 December 2018, voluntary means that countries face governments. https://unfccc.int/news/milestone-fash- few consequences for non-compliance ion-industry-charter-for-climate-ac- with targets. In the long term, there- A precedent for this sort of body tion-launched. fore, adherence to climate ‘rules’ – already exists in Ireland, where a citi- [5] GGCA (2019), Summary of responses constrained as these currently are, in zens’ assembly was launched in 2017. to consultation. a formal sense – must ultimately come The assembly’s conclusions, published via a fourth way: sustained pressure in 2018,[8] showed 97 per cent of its [6] Fagan, M. and Huang, C. (2019), ‘For by citizens on national governments. members recommending that climate Earth Day, a look at how people around the In response to growing confidence change be at the centre of policymak- world view climate change’, Pew Research in climate science, the risks of climate ing in Ireland.[9, 10] Similar mecha- Center, 18 April 2019, https://www.pewre- change are increasingly a major nisms, if enacted, in other countries search.org/fact-tank/2019/04/18/for-earth- concern to the public. Recent analysis could enable public frustration over day-a-look-at-how-people-around-the-world- by the Pew Research Center shows climate action to be captured across view-climate-change/. that climate change is considered the jurisdictions, potentially translating [7] 350.org (2019), ‘Update 1.6 million top threat in 50 per cent of surveyed into a stronger evidence base for more students across the globe demand climate countries.[6] Growing segments of soci- ambitious national strategies.  action’, 15 March 2019, https://350.org/ ety, perceiving inaction or insufficient press-release/1-4-million-students-across-the- action on the part of governments, globe-demand-climate-action/.

44 Chatham House Expert Perspectives 2019 [8] The Citizens’ Assembly (undated), ‘How what needs to happen the State can make Ireland a leader in tack- ling climate change’, https://www.citizen- — National governments sassembly.ie/en/How-the-State-can-make- need to commit to more Ireland-a-leader-in-tackling-climate-change/ ambitious mitigation and How-the-State-can-make-Ireland-a-leader-in- adaptation targets, within tackling-climate-change.html. shorter time frames.

[9] The Citizens’ Assembly (undated), — To help achieve this, ‘Establishment of the Assembly’, the 2019 UN climate summit https://www.citizensassembly.ie/en/ could establish a tracking About-the-Citizens-Assembly/Background/. mechanism for national [10] The legislation around citizens’ assemblies climate commitments with in Ireland requires that the Houses of the Oire- a closed-door process of peer achtas respond to each recommendation of an review between countries. assembly and, if accepting the recommenda- tion, indicate the time frame it envisages for — Ultimately, countries the holding of any related referendum. cannot be forced to cut emissions and raise targets – but increasing pressure could help, meaning the UNFCCC process needs to do more to leverage local government, business, finance and civil society.

— Countries could undertake bottom-up assessments to include local authorities in revising climate targets, given such entities’ on-the-ground practical knowledge.

— Businesses could be encouraged to set up industry-specific charters on climate action (e.g. as seen in the fashion industry). This can help to promote climate-smart innovation.

— Government ambition needs to reflect growing public concern over climate change and enable greater citizen engagement.

Global perspectives Increase Climate Ambition by Making Policy More Inclusive 45 13. sustainability

TARGET AGRICULTURAL SUPPLY CHAINS TO TACKLE DEFORESTATION

by Duncan Brack

An international framework on trade in timber would help to reduce illegal logging and combat climate change. It would be even more effective if also adapted to cover trade in agricultural commodities.

46 Chatham House Expert Perspectives 2019 ever since the collapse of the to address different aspects of for- More importantly, even in countries attempt to negotiate a global agree- est policy, such as climate change, yet to introduce a licensing system, ment on forests at the UN Conference biodiversity or illegal logging, in such as Ghana, the process of negoti- on Environment and Development most cases without significant impact. ating and implementing the VPAs has (the ‘Earth Summit’) in 1992, there Forest targets set recently – such as itself triggered significant improve- has been, in effect, no rules-based the aim of ending deforestation by ments in forest governance: enhancing international order relating to forests. 2020 expressed in the UN Sustainable the transparency and accountability Recent developments, however, hold Development Goals and the UN’s of forestry administration, as well out the prospect – faint though it may Global Forest Goals – will be missed. as recognition of community rights, be – of the emergence of an interna- But some progress in addressing while creating new mechanisms for tional framework promoting forest deforestation has been made in re- exposing corruption along the entire governance and law enforcement cent years in one area: improvements supply chain. This has helped to lead by regulating trade in timber and in forest governance through tackling to a measurable decline in illegal agricultural commodities associated international trade in illegally logged logging in a number of countries, with deforestation. timber – a major problem for many including Ghana.[4] There is no doubt that this is forest-rich tropical countries. Over an urgent challenge. Over the last the past 20 years or so, producer and Over the last 60 years, the world has lost almost consumer countries have increasingly 10 per cent of its remaining forests.[1] cooperated to exclude illegal timber 60 years, the Although, overall, deforestation has from international trade. The US, the slowed or reversed in temperate and EU, Australia, Japan and South Korea world has boreal areas, it remains unsustainably have all adopted domestic legisla- high in tropical forests. Continued tion designed to close their markets lost almost deforestation contributes to climate to illegal timber products. Under change (accounting for 12–14 per cent the EU’s Forest Law Enforcement, 10 per cent of of global greenhouse gas emissions), Governance and Trade (FLEGT) ini- its remaining disrupts local temperatures and water tiative, a series of bilateral Voluntary cycles, destroys habitats and wildlife Partnership Agreements (VPAs) have forests. (forests provide habitats for two-thirds been negotiated between the EU and of land-based plants and animals), and timber-exporting countries. These To have a greater impact on threatens the lives of forest commu- agreements have established legality deforestation, however, policy needs nities and indigenous peoples. More assurance and licensing systems to go further than addressing trade than 1.6 billion people – about a fifth designed to ensure that only timber in timber alone. This is because the of the global population – depend on products verified as legally produced main global driver of deforestation is forests for food, medicines and fuel, can be exported to the EU (and, not logging for timber but clearance as well as their jobs and livelihoods.[2] in practice, to other destinations). of forests for agriculture. The key Efforts to date to create a legally In turn, FLEGT-licensed products point here is that trade patterns for binding global framework for the are granted easier access to the EU agricultural commodities are simi- protection of forests have foundered market than timber from other coun- lar to those for timber: developing mainly on developing countries’ tries. Australia’s legislation explicitly countries export commodities such as insistence on retaining sovereignty recognizes FLEGT licences, potential- palm oil, soy, beef, cocoa and rubber to over their ability to exploit their own ly beginning to lay the foundations consumer markets such as the EU, the natural resources; not an unreason- for an international regime. US, Japan and, increasingly, China and able position, especially given that Such initiatives remain at an India.[5] Interest is therefore growing, the arguments for such a treaty were early stage. Only one producer particularly in the EU, in adapting the mainly advanced by industrialized country – Indonesia – has so far intro- experience of the FLEGT initiative for nations, which had deforested their duced a full export licensing system. agricultural trade. This could include own land centuries before. Nonetheless, the evidence suggests requiring businesses selling ‘forest risk Instead, a patchwork of multilateral that it is now becoming easier to sell commodities’ on the EU market to have agreements, UN and regional strat- Indonesian timber products on the EU in place a system of due diligence, egies, action plans, declarations and market as a consequence – indicating designed to minimize the risk of ag- bilateral arrangements have attempted that such policies can be effective.[3] ricultural products associated with

Global perspectives Target Agricultural Supply Chains to Tackle Deforestation 47 deforestation (and with other unde- of this year, will have the opportu- [4] Overdevest, C. and Zeitlin, J. (2016), sirable activities such as human rights nity to propose a new Action Plan Experimentalism in Transnational Forest abuses or the use of child labour) on Deforestation, building on the Governance: Implementing EU Forest Law entering the supply chain. The EU experience of the FLEGT initiative Enforcement Governance and Trade (FLEGT) Timber Regulation, introduced under and dealing with the EU’s impact Voluntary Partnership Agreements in Indonesia the FLEGT initiative, includes this kind on forests worldwide. This will be and Ghana, Amsterdam Centre for Contempo- of due diligence approach for illegally a potentially important moment for rary European Studies, SSRN Research Paper logged timber. Discussion is also forest governance: if it is to tackle 2016/02, https://papers.ssrn.com/sol3/pa- starting about adapting the bilateral deforestation effectively, the Action pers.cfm?abstract_id=2802659. partnership agreement model cur- Plan should include both proposals for [5] Brack, D., Glover, A. and Wellesley, rently used for timber so that it can be regulation to deal with agricultural L. (2016), Agricultural Commodity Supply applied to commodities such as cocoa, commodities associated with deforest- Chains: Trade, Consumption and Deforestation, a major driver of deforestation in ation that are placed on the EU market Chatham House Research Paper, https:// West Africa. and a plan to establish dialogue along www.chathamhouse.org/publication/agri- All these discussions are taking the supply chain with major consumer cultural-commodity-supply-chains-trade-con- place against the background of and producer countries, with the sumption-and-deforestation. a wider debate on the responsibility aim of developing the beginnings of business for environmental harm of a global framework. and human rights abuses associated Until agricultural supply chains with corporate operations and supply are tackled effectively – which must what needs to happen chains. The debate has been stimu- involve action by consumer-country lated in part by the adoption of the governments and businesses – tropical — Expand timber legality UN Guiding Principles on Business forests will never be effectively protect- assurance and export licensing and Human Rights, agreed in 2011, ed. An international initiative focusing schemes to more producer and and subsequent instances of national on trade in forest risk commodities consumer countries. legislation such as the UK Modern offers a possible route forward. Slavery Act of 2015 and the French — Build on the EU’s FLEGT Devoir de Vigilance law of 2017. initiative to tackle a broader duncan brack is a senior research Does this route offer the chance set of drivers of deforestation, fellow with the Energy, Environment of building a global framework that rather than focusing only on and Resources Department at offers effective protection to forests? illegal timber. Chatham House. There are undoubtedly formidable obstacles. All countries tend to resist — Adapt the bilateral external efforts to regulate their right References partnership agreement to exploit their natural resources – but [1] Food and Agriculture Organization of the and corporate due diligence the FLEGT approach, based around United Nations (2016), Global Forest Resources approach used in the EU for enforcing the laws of the producer Assessment 2015, http://www.fao.org/for- illegal timber to agricultural country, places them in control of est-resources-assessment/past-assessments/ commodities associated the standards to be regulated. It fra-2015/en/. with deforestation, such as also focuses on the root cause of palm oil, soy, beef, cocoa [2] Seymour, F. and Busch, J. (2016), Why much deforestation: weaknesses in and rubber. Forests? Why Now? The Science, Economics and governance and law enforcement. Politics of Tropical Forests and Climate Change, Unlike previous attempts at a binding — Lobby for ambition in the Center for Global Development, https:// agreement on forests, this approach forthcoming EU Action Plan www.cgdev.org/publication/why-forests- uses trade as a lever, conditioning ac- on Deforestation. why-now-science-economics-and-politics- cess to consumer markets on products tropical-forests-and-climate-change. meeting specified standards. It places — Encourage other requirements not just on governments [3] Oliver, R. (2019), ‘The changing tropical consumer countries to adopt but on the businesses buying and timber trade’, presentation to Forest Govern- a similar approach. selling the products. ance Markets and Climate forum, London, The new European Commission, March 2019. due to take office towards the end

48 Chatham House Expert Perspectives 2019 14. international law

ENGAGE CHINA TO UPHOLD MULTILATERALISM – BUT NOT AT ANY COST

by Harriet Moynihan

Where China’s interests align with those of the international community, there are opportunities for the country’s influence and economic power to strengthen the rules-based international order. Where they do not, states that traditionally support that order should join together to push back.

Regional perspectives Engage China to Uphold Multilateralism – but not at any Cost 49 china’s adherence to the rules- rights in China’s trade and investment to be recognition of the strategic goals based international system is selective, treaties. China is actively engaged in that drive China’s engagement. China’s prioritizing certain rules in favour multilateral negotiations through the interest in the Arctic, while including of others. States supportive of that UN Commission on International Trade the desire to protect its ecology and ‘system’ – or, as some argue, systems[1] – Law (UNCITRAL) on reforms to inves- environment, is also about access to should identify areas of mutual strategic tor–state dispute settlement. marine resources, as well as about interest so that they can draw China China has shown leadership on the Arctic’s strategic potential for further into the global rules-based order global climate change diplomacy, China’s military. China’s submissions and leverage China as a constructive urging nations to remain committed to to ITLOS on the rules of procedure player that potentially also contributes the Paris Agreement in the wake of the for deep-sea mining are constructive, to improvements in such areas. This is US decision to pull out, and has been but also reflect an ambition to secure particularly apposite at a time when the an important interlocutor with the UK first-mover advantage when commer- US is in retreat from multilateralism and the EU on these issues. As a strong cial mining eventually takes place. Like and Russia seems bent on disrupting supporter of the Paris Agreement, other major powers working in this the rules-based international order. but also as the world’s top emitter of policy area, China’s actions are guided carbon dioxide, China has a crucial by self-interest, but that doesn’t mean Supportive player role to play in pushing forward imple- its goals can’t be pursued through There are many reasons for actively mentation of the Paris targets. Despite multilateral rules. engaging with China on mutual areas its high emissions, China remains China is also interested in creating of interest. China is a committed mul- one of the few major economies on new international structures and tilateralist in many areas, recognizing track to meet its targets,[3] giving it instruments that further its strate- that often international cooperation greater leverage to peer review other gic aims. For example, with Russia and frameworks hold the key to its parties’ efforts. (through the Shanghai Cooperation domestic problems, for example in the A recent report by the UK parlia- Organisation) it has proposed an fields of environmental sustainability ment’s Foreign Affairs Committee International Code of Conduct for and financial regulation. China’s eco- (FAC), on China and the rules-based Information Security in the UN.[6] nomic power is valuable in upholding international order, noted that China is also pondering an array of international institutions: China is the where a body of trust and goodwill options for dispute-resolution mech- UN’s third-largest donor (after the US is developed with China, there is the anisms for its Belt and Road projects, and Japan) at a time when the UN is possibility of discovering interests that including the possibility of an Asian facing budgetary shortfalls. China is coincide and the ability to work togeth- version of the international Convention also the second-highest contributor to er on issues mutually regarded as of on the Settlement of Investment the UN peacekeeping budget, and the global importance. The report refers Disputes, which might sit under the largest contributor of peacekeeping to a number of success stories from UK auspices of the Asian Infrastructure forces among the five permanent mem- partnership with China in multilateral Investment Bank (AIIB).[7] bers of the UN Security Council. forums, including in counterprolifera- The creation of new instruments China also has a valuable role to tion and global health.[4] and institutions need not be a threat to play in the settlement of international the rules-based international order in disputes over trade and investment. Developing areas itself. We have already seen a combina- China is a big supporter of the World of global governance tion of the creation of parallel comple- Trade Organization (WTO)’s dispute As well as working with the current mentary regimes alongside the reform settlement mechanism, and one of system, China is increasingly involved of existing institutions, for example in its most active participants;[2] China in the shaping of newer areas of development financing through the is currently playing an active role in international law – whether it be sub- AIIB or the New Development Bank negotiations to save the WTO’s appellate missions to the International Tribunal (often referred to as the ‘BRICS Bank’); mechanism from folding in the wake of for the Law of the Sea (ITLOS) on these two banks are relatively conven- the US’s refusal to nominate new judges. procedural rules for the emerging tionally structured along the lines of The last 15 years have also seen a major deep-sea mining regime or pitching for Western-dominated institutions, albeit shift in Chinese attitudes to investment a greater role in Arctic governance.[5] with greater Chinese control. Based arbitration, from a general suspicion and This enthusiasm should be harnessed on these examples, selective adapta- limitation of arbitration rights to broad to promote the international rule of tion seems more likely than a hostile acceptance and incorporation of such law, but at the same time there needs ‘Eastphalian’ takeover.[8]

50 Chatham House Expert Perspectives 2019 Risks standards to be applied.[13] Unless opting for a joint venture with an Indian There is, however, a real risk that the court can demonstrate sufficient company. China has been downscaling in certain areas China may promote due process, international parties its investments as a way to counter a rival authoritarian model of gov- are likely to prefer other centres with some of the backlash it has received: ernance, assisted by an opportunistic a strong reputation for upholding the the most recent Belt and Road summit convergence with Russia on issues such rule of law, such as those in London, put forward a more modest set of aspi- as human rights, development and Dubai and Singapore. rations. This suggests that there is some internet governance. In areas where Where China does promote its scope for states to stand up to China China’s core interests clash with those own governance model at the expense and use leverage to get better deals. of the rules-based international order, of the rules-based international order, Many international institutions have China has shown itself to be unbend- states are starting to push back, often been Western-dominated for years;[16] ing, as in its refusal to abide by the in concert. EU member states so far China, together with many emerging July 2016 decision of the Permanent have adopted a joined-up approach to and middle powers, has felt for some Court of Arbitration in its dispute the Belt and Road Initiative. With the time that the international architecture with the Philippines over the South exception of Italy, they have refused to does not reflect the world we live in. China Sea.[9] China is becoming more sign a Memorandum of Understanding Given that context, states that champion assertive at the UN, but while it seeks on participation unless China provides the rules-based international order to project itself there as a responsible much greater transparency on its should acknowledge China’s desire to emerging global leader, it is promoting compliance with international stand- update the international order to reflect a vision that weakens international ards. The EU also recently presented greater multipolarity, globalization norms of human rights, transparency a coordinated response to China on and technological change, while being and accountability,[10] while also the situation in Xinjiang.[14] Similarly, clear-eyed about their engagement with carrying out practices domestically that members of the so-called ‘Five Eyes’ China. This involves investing in a prop- raise serious human rights concerns intelligence-sharing alliance (compris- er understanding of China and how it (not least the detention of hundreds of ing Australia, Canada, New Zealand, works.[17] Where possible, cooperation thousands of Uighurs in re-education the UK and the US) have acted together with China should lead to outcomes that camps in Xinjiang).[11] China’s in- in relation to certain incidents of cyber are backed up by international stand- creased dominance geographically and interference attributed to China.[15] ards and transparency. The above- geopolitically through its Belt and Road mentioned FAC report cites evidence infrastructure projects carries with it Cooperation that the UK’s support, and that of other a number of social and economic risks, developed countries, had a positive including smaller states becoming with China impact in shaping the governance and trapped in unsustainable financial standards of the AIIB.[18] China has debts to China. should lead to brought in international experts to ad- But at a recent Chatham House vise on disputes before the CIIC, which conference on Asia and international outcomes that may reassure would-be litigants. law, participants highlighted the China’s relationship with the rules- limitations on how far China can are backed up based international order needs to be shape an alternative governance by international assessed pragmatically and dynami- model.[12] China currently lacks soft cally. China can be a valuable partner power, cultural power and language standards and in many areas where its objectives power, all of which are needed in are closely aligned with those of the order to embed an alternative model transparency. international community – from trade abroad. China also currently lacks to climate change to peacekeeping. capacity and confidence to build There are also signs of pushback But where the country’s core interests coalitions with other states in the from smaller states closer to home in are at odds with those of the wider UN. Where it has tried to get buy-in relation to challenges to national sov- international community, an increas- from the international community ereignty, debt diplomacy and financial ingly confident China will strongly for its new institutions, such as the viability arising from Belt and Road pro- resist pressure, including on the China International Commercial jects. The Sri Lankan government re- South China Sea and human rights. Court (CICC) announced in July 2018, cently reversed the award of a $300 In these areas, states supportive of there has been scepticism about the million housing deal to China, instead international law can most powerfully

Regional perspectives Engage China to Uphold Multilateralism – but not at any Cost 51 push back through alliances and by The Role of International Law’, conference February 2019, London: Royal United Services ensuring that their own core values summary, https://www.chathamhouse.org/ Institute, p. 30, https://rusi.org/publication/ are not compromised in the interests event/security-and-prosperity-asia-pacif- occasional-papers/china-uk-relations-where- of economic benefits.  ic-role-international-law. draw-border-between-influence-and.

[9] Permanent Court of Arbitration Case No. [18] House of Commons Foreign Affairs harriet moynihan is an associate 2013-–19 (Philippines v China), Award of 12 July Committee (2019), China and the Rules-Based fellow with the International Law 2016, https://pca-cpa.org/wp-content/uploads/ International System, p. 15. Programme at Chatham House. sites/6/2016/07/PH-CN-20160712-Award.pdf.

[10] Piccone, T. (2018), China’s Long Game what needs to happen References on Human Rights at the United Nations, [1] Chalmers, M. (2019), Which Rules? Why Washington, DC: Brookings Institution, — China’s rising power There is No Single ‘Rules-Based International https://www.brookings.edu/wp-content/ and selective commitment System’, RUSI Occasional Paper, April 2019, uploads/2018/09/FP_20181009_china_hu- to multilateralism make it London: Royal United Services Institute, man_rights.pdf. a potentially influential ally https://rusi.org/occasional-papers/Which- in modernizing international [11] Wye, R. (2018), ‘‘The entire Uyghur pop- Rules-Why-There-Is-No-Single-Rules-Based- governance. ulation is seemingly being treated as suspect’: International-System. China’s persecution of its Muslim minority’, — China is increasingly [2] See, for example, Moynihan, H. (2017), Chi- LSE Religion and Global Society blog, 18 involved in shaping newer na’s Evolving Approach to International Dispute September 2018, https://blogs.lse.ac.uk/ areas of international law. This Settlement, Briefing, London: Royal Institute of religionglobalsociety/2018/09/the-entire-uy- enthusiasm could be harnessed International Affairs, https://www.chatham- ghur-population-is-seemingly-being-treat- in the service of institutional house.org/publication/chinas-evolving-ap- ed-as-suspect-chinas-persecution-of-its-mus- development and reform. proach-international-dispute-settlement. lim-minority/.

[3] UN Environment (2018), Emissions Gap [12] Chatham House (2019, forthcoming), — Other states should Report 2018, p. XVII, https://www.unenvi- ‘Security and Prosperity in the Asia-Pacific: identify areas of mutual ronment.org/resources/emissions-gap-re- The Role of International Law’. strategic interest where China port-2018. may offer a constructive role, [13] Walters, M. (2018), ‘Jury is out over including dispute settlement, [4] House of Commons Foreign Affairs China’s new commercial court, say lawyers’, health and climate change. Committee (2019), China and the Rules-Based Law Society Gazette, 1 November 2018, International System: Sixteenth Report of https://www.lawgazette.co.uk/law/jury-is- — However, engagement Session 2017–19, p. 32, https://publications. out-over-chinas-new-commercial-court-say- must not ignore the strategic parliament.uk/pa/cm201719/cmselect/cm- lawyers/5068125.article. calculations that drive faff/612/612.pdf. [14] The Economist (2019), ‘Hope remains for China’s agenda, or its poor [5] Moynihan, H. (2018), ‘China Expands Its Western solidarity. Look at embassies in Beijing’, record on civil and political Global Governance Ambitions in the Arctic’, Ex- 17 April 2019, https://www.economist.com/chi- rights, transparency and pert Comment, 15 October 2018, https://www. na/2019/04/20/hope-remains-for-western-soli- accountability. chathamhouse.org/expert/comment/china-ex- darity-look-at-embassies-in-beijing. pands-its-global-governance-ambitions-arctic. — Cooperation with China [15] In December 2018, the Five Eyes attribut- should lead to outcomes that [6] Updated version proposed 9 January 2015. ed the activities of a Chinese cyber espionage are backed up by international group targeting intellectual property and standards and transparency. [7] Moynihan, H. (2018), ‘Exploring Public sensitive commercial property to China’s International Law Issues with Chinese Schol- Ministry of State Security. — Where China’s actions ars – Part Four’, Meeting Summary, 3 June undermine the rules- 2018, https://www.chathamhouse.org/publi- [16] Roberts, A. (2017), Is International Law In- based international order, cation/exploring-public-international-law-is- ternational?, Oxford: Oxford University Press. coordinated action by states sues-chinese-scholars-part-four. [17] Parton, C. (2019), China–UK Relations: supportive of that order is [8] Chatham House (2019, forthcoming), Where to Draw the Border Between Influence likely to be more effective ‘Security and Prosperity in the Asia-Pacific: and Interference?, RUSI Occasional Paper, than acting individually.

52 Chatham House Expert Perspectives 2019 15. politics and international cooperation

DON’T OVERSTRETCH

by Hans Kundnani

How the European Union took the idea of a ‘rules-based order’ too far – and how it can regain legitimacy.

Regional perspectives Don’t Overstretch 53 the european union is the that not only should be contested but states and therefore lacks this specific ultimate ‘rules-based order’. Since the that should be at the centre of contes- kind of legitimacy. Supporters of end of the Cold War, the world has tation – in particular, economic policy European integration as currently become increasingly integrated, in areas that have distributional conse- constituted – whom one might term a process that Dani Rodrik has called quences (that is, they create winners ‘pro-Europeans’ – would argue that ‘hyper-globalization’ to distinguish and losers). EU rules are more like domestic rules this from the more moderate form of than international rules: after all, globalization that occurred during the With the they are agreed through a process Cold War period. But Europe, which involving democratic institutions such was already more integrated than creation of the as the European Parliament. But even the rest of the world, has gone even within the EU, power matters – further in removing barriers to the single currency, as notably illustrated by Germany’s internal movement of capital, goods prominent (and controversial) role in and people. The consequence of this European rules driving the development of fiscal rules has been the need for a more devel- since the beginning of the euro crisis. oped system of rules to govern this increasingly In addition, because European deep integration. extended into integration is meant to be an irrevers- For much of this period, many ible process, it is extremely difficult Europeans – and also many outside areas of life in to change or abolish rules that have Europe who had a liberal view of already been agreed. To do so would international politics – believed that which member be ‘disintegration’ in the sense that the EU was a kind of blueprint for powers would be returned to member global governance. They believed states had states. For example, there are good that the rest of the world would previously economic and political arguments simply catch up with the enlightened for abolishing the ‘debt brake’, and apparently successful approach had relative based on a German model, that EU that Europeans had taken. In short, member states agreed to incorporate Europeans were showing the way autonomy. into their national constitutions forward for the world. as part of the Fiscal Compact in However, after a decade of cri- The EU’s rules constrain its 2011. But anyone making those ar- sis, it now seems as if Europe may have member states even more than global guments is labelled as Eurosceptic overreached. In particular with the cre- rules – for example, those of the World or ‘anti-European’. ation of the single currency, European Trade Organization (WTO) – or rules There is also insufficient differenti- rules increasingly extended into areas associated with other regional integra- ation between EU rules. Any decision of life in which member states had tion projects constrain nation states taken at a European level – even previously had relative autonomy. Since elsewhere in the world. In particular, those decisions, such as on the Fiscal the beginning of the euro crisis in 2010, the EU’s fiscal rules – created along Compact, that are outside the EU trea- there has been a backlash against EU with the euro – set strict limits on ties – becomes part of the EU’s system rules, which has raised the difficult the ability of member states to run of rules. To challenge such a decision question of whether international budget deficits and accumulate debt. is therefore to violate the rule of law rule-making can go too far. Since the beginning of the euro crisis, and therefore the EU’s ‘values’. As What makes international rules these fiscal rules have been further Dieter Grimm has shown, legislation problematic is that they depoliticize – tightened, which in turn has mag- that would normally have the status that is, they take the policy areas they nified the political backlash against of secondary law in a nation state has cover out of the realm of democratic the EU system and fuelled tensions constitutional status in EU law and is contestation. This can be a good thing between member states. therefore ‘immunized against politi- when applied to policy areas that In democratic nation states, cal correction’.[1] we think should be non-negotiable, rules are made through a process that Though European leaders still like human rights. But since the gives them what is sometimes called often speak of the EU as a model for 1980s, and especially since the end of ‘input legitimacy’. International rule- the rest of the world, the reality is that the Cold War, international rules have making, by contrast, is essentially the it now illustrates what other regional increasingly applied to areas of policy product of power relations between integration projects should avoid as

54 Chatham House Expert Perspectives 2019 much as what they should emulate. strengthened nation states – indeed, [3] Rodrik, D. (2006), ‘Put Globaliza- Even before the euro crisis, few Alan Milward argued that integration tion to Work for Democracies’, New York Times, other regions were thinking of creating ‘rescued’ the nation state in Europe.[2] 17 September 2006, https://www.nytimes. a common currency. But they will now But since the end of the Cold War, rules com/2016/09/18/opinion/sunday/put-globali- think even more carefully about how at both the global level and a European zation-to-work-for-democracies.html. far to follow Europe down the route level have been driven by the maxi- of economic integration it has taken – mization of economic efficiency. This and in particular will be unlikely to has undermined the nation state. what needs to happen introduce EU-style fiscal rules. As Rodrik has argued, a reprioritization The difficult question is where is now needed – rules should be made — The EU offers a cautionary exactly the limits of international above all with their impact on democra- tale on the limits of regional rule-making should be set. The cy in mind.[3] integration, with its status European experience in the past dec- In order to regain legitimacy, as a model for international ade suggests that rules on economic Europe should apply this idea of governance eroded by policy are particularly problematic democracy-enhancing rules to its a decade of crisis. because of the distributional con- own approach to integration. It sequences they have. But European should begin by differentiating — In certain areas, notably integration focused on economic more clearly between rules that are fiscal policy, democratically policy from its beginnings with the fundamental to the European project contested decision-making European Coal and Steel Community and those about which Europeans has been subordinated to in the 1950s. Moreover, because can – and should – disagree. The con- ‘depoliticized’ supranational globalization is to a large extent an sequence of thinking of rules above all rules. The crisis over the economic phenomenon, economic in terms of legitimacy may be that in single currency exemplifies policy is precisely where internation- some policy areas, particularly those the tensions between al rules are needed. with distributive consequences, rules autonomy and integration. should be abolished and power re- In order turned to member states. — To restore its legitimacy, ‘Pro-Europeans’ should be open the EU needs to recalibrate to regain to this kind of ‘disintegration’ as a way the balance between rules to help the EU regain legitimacy and and democracy. Policymakers legitimacy, thus be sustainable in the medium term. should ensure that laws are It is also only by successfully recalibrat- made with their impact on Europe should ing the balance between rules and de- democracy in mind. mocracy that the EU will once again be apply this idea seen as a model for regional integration — Politicians and of democracy- projects in the rest of the world, and for policymakers should global governance more generally.  differentiate more clearly enhancing between rules that are fundamental to the European hans kundnani is a senior research rules to its project and those about fellow with the Europe Programme which Europeans can – at Chatham House. own approach and should – disagree. to integration. References — In some policy areas, A good place to start in think- [1] Grimm, D. (2015), ‘The Democratic this could include returning ing about where to set the limits of Costs of Constitutionalisation: The Europe- powers to member international rule-making may be in an Case’, European Law Journal, Volume 21, states. Though politically terms of the objectives of rules. During Issue 4, July 2015, https://onlinelibrary.wiley. challenging, this will require the early phase of European integration com/doi/abs/10.1111/eulj.12139. ‘pro-Europeans’ to tolerate and the more moderate phase of glo- some ‘disintegration’ as the [2] Milward, A. (1999), The European Rescue balization in the 30 years after the end price of ensuring the future of the Nation State, London: Routledge. of the Second World War, integration stability of the EU.

Regional perspectives Don’t Overstretch 55 16. politics and international cooperation

RAISE THE BAR

by Thomas Raines

The European Union should focus on using its regulatory power and economic clout to export high standards to the rest of the world.

56 Chatham House Expert Perspectives 2019 a decade of crises has generat- corporate mergers, sometimes The process has also shown ed plenty of pessimism about the even when the companies involved the lengths to which the EU will go to European Union. It is certainly true are not headquartered in Europe. defend the integrity of the market it that the EU faces structural chal- The EU’s chemical regulation, has built. That integrity brings power. lenges and political divisions over REACH,[1] vies with its US equivalent The relative importance of this power reforming the euro and migration to set the terms of global chemical is increased in an era when multi- policy, as well as disputes over the use. Through its General Data lateralism is under strain. The EU’s rule of law in some member states. Protection Regulation (GDPR), regulatory power is not dependent But these problems should not the EU has taken the lead upon international consensus-build- obscure the union’s strengths. The in trying to protect personal ing or functioning multilateral EU is a trade, regulation and stand- privacy amid the rise of the institutions. It is not the result of an ard-setting superpower, and even data-driven economy. international negotiation dependent while international cooperation stalls The EU can do this largely be- on reasonable or compliant partners in some areas, it can help to lead the cause of its size and competence. who share a broadly similar world world in regulating markets on crucial Non-compliance means losing out view. It is a unilateral power of the EU, questions of privacy, competition, on access to Europe’s $20 trillion rooted in market size and regulatory technology and the environment. market. In many cases, it does not competence, and so is less affected make sense for companies to make by, say, a rogue American president. Brexit has products to varying standards, rather As Bradford originally observed, than ensure all adhere to the highest the ‘Brussels effect’ has not always been a powerful one. So where EU standards are more been an intentional phenomenon. stringent than – and not incompatible The EU’s approach to regulation is demonstration with – those in other key markets, largely driven by its own politics and particularly the US, they can be- policy preferences, filtered through the of the EU’s trade come the de facto rule. complex process of law-making at the Brexit has been a powerful European level, rather than generally and regulatory demonstration of the EU’s trade and being a conscious effort to regulate power. regulatory power. In many areas, from the world. However, in some instances electrical products to pharmaceuticals, there has been a greater awareness In 2012 Anu Bradford, a professor it will make little sense for the UK to try of the EU’s capacity to set global at Columbia Law School, christened to diverge from rules made in Brussels. standards in areas of emerging law. the EU’s ability to export its reg- Even though it is a major economy, the The EU’s data privacy law, ulations around the world as the UK is the considerably smaller side in GDPR, is a good example. The ‘Brussels effect’, borrowing from the negotiations, and the EU is the des- regulation governs how the personal a term used to describe the phenom- tination for more than 40 per cent of its data of Europeans are collected, used, enon in the US in which Californian exports. The ‘common rulebook’ that moved and stored, but its broad scope regulations – often more stringent formed part of the UK government’s gives it extraterritorial effect.[2] It puts than in the rest of the country – are proposed future relationship was an citizens’ privacy at the heart of data adopted in other US states due to admission of this: rather than being use, placing much clearer restrictions California’s relative economic heft. ‘common’ rules, the commitment was on the collection, storage and use of The EU’s size means it can replicate a euphemistic expression of the need personal data. While GDPR initially this in some policy domains at a glob- for the UK to follow rules set by the EU attracted criticism for compliance costs al level: in effect, achieving a form of to ease trade, while losing the ability to and ambiguity in implementation, ‘unilateral regulatory globalization’ directly shape them. The Brexit process various revelations about the behav- through market mechanisms, and has highlighted the EU’s position as iour of big technology companies[3] ideally leading to raised and harmo- Europe’s regulatory hegemon: the mass have served to validate the intention nized global standards. of laws, rules and standards around and spirit of the regulation. In a number of areas, the which the rest of non-EU Europe, and The EU could be more active in seek- EU has shown its international much of the world, orbits. Britain has ing to export regulation internationally, regulatory clout. EU competition burned a lot of political fuel seeking designing standards with the intention policy has constrained the behaviour escape velocity, with little economic of promoting global goods and using of multinationals or blocked opportunity in sight. its trading power to supplement such

Regional perspectives Raise the Bar 57 efforts. In this, the EU is likely to have use and trying to curb the effects of [3] Kleinman, Z. (2018), ‘Cambridge Analyt- a greater impact through its regulatory European consumption on the devel- ica: The story so far’, BBC News, 21 March power than through its generally weak oping world. It could more aggressive- 2018, https://www.bbc.co.uk/news/technol- foreign and defence policy, which is ly use trade policy, and even sanctions, ogy-43465968. hampered by substantial differences of to try to raise climate ambition on [4] European Parliament (2017), ‘Motion attitude, capability and will across the the part of major emitter countries. for a European Parliament resolution on the continent, and by the fact that decisions It could also build on efforts to place impact of international trade and the EU’s are largely intergovernmental and ethical and legal constraints on the use trade policies on global value chains’, 20 July based on unanimity. of data by focusing on the regulation 2017, http://www.europarl.europa.eu/doceo/ of emerging technologies. The EU has document/A-8-2017-0269_EN.html?redirect. Overall, the already convened a High-Level Expert Group to establish ethical guidelines EU has a good on artificial intelligence. The European Commission’s focus on ensuring what needs to happen record of competitive markets while robustly protecting citizens’ privacy makes it — As a trade, regulation and pioneering well placed to lead this agenda. And it standard-setting superpower, should always be willing to challenge the EU can help to lead the pro-consumer domestic attitudes and interest groups world in regulating markets on regulation and within Europe when their positions are crucial questions of privacy, not rooted in science or evidence. competition, technology and challenging There are risks of overreach: sti- the environment. fling nascent industries, overburden- corporate ing companies, or giving competitive — In many areas, the advantages to other states or territories. EU has been successful in power But overall, the EU has a good record exporting its regulation to unilaterally. of pioneering pro-consumer regula- the rest of the world through tion and challenging corporate power the sheer power of its market. For example, the EU could do unilaterally, with knock-on effects It could be more active in more to look at supply chain eth- globally. That agenda will be all the seeking to design rules and ics and transparency. Building on more important if international standards with the intention member states’ efforts, such as the cooperation and multilateralism of promoting global goods. UK’s Modern Slavery Act, which oblig- become ever more difficult.  es larger companies to publish annual — An expanded agenda could statements explaining the efforts they include: supply chain ethics thomas raines is the head have taken to address risks of slavery and transparency, further of the Europe Programme and trafficking, the EU could work with regulation to tackle tax at Chatham House. the private sector to raise standards of avoidance, raising ambition transparency, labour rights and cor- on environmental protection porate responsibility in global supply References and emissions reduction, and chains, as the European Parliament has [1] REACH refers to ‘Registration, Evaluation, developing regulation for called for.[4] It could take a stronger Authorisation and Restriction of Chemicals’. emerging technologies. approach to tax avoidance, adding See ECHA (undated), ‘Understanding REACH’, robustness to the tax haven blacklist- https://echa.europa.eu/regulations/reach/ ing initiative that began in December understanding-reach. 2017. On the environment, the EU has [2] Freshfields Bruckhaus Deringer (undat- already been a leader, for example by ed), ‘The extra-territorial scope of the EU’s pioneering emissions standards and GDPR’, https://www.freshfields.com/en-gb/ trading, but the scale of the task to our-thinking/campaigns/digital/data/gener- combat climate change and biodiversi- al-data-protection-regulation/. ty loss remains vast. The EU could push further on electrical standards, plastics

58 Chatham House Expert Perspectives 2019 17. security

ADDRESS RUSSIAN RULE- BREAKING

by James Nixey

What can the West do to keep Russia in check, when the country’s state policy is fundamentally at odds with the rules-based international order and when the Kremlin has every intention of continuing to act as a disruptive force?

Regional perspectives Address Russian Rule-breaking 59 the kremlin famously demands This inevitably means that the In rare instances where Russia’s ‘respect’ from the world’s leading Kremlin’s ambition is a threat to interests coincide with those of the powers and international organiza- all those European countries that West, any mutual gains are entirely tions.[1] But it shows little respect itself subscribe to the current order, police context-limited: the confluence of for the rules-based international or- it, or aspire to be a part of it. The ma- factors cannot be leveraged to achieve der. Indeed, it rejects the very notion terial extent of that threat can be seen cooperation elsewhere. In fact, the re- that such an order exists. Where most in the 13,000 deaths in Ukraine since verse mechanism applies, with Moscow Western governments see an imperfect the start of the conflict in 2014,[2] exploiting any supposed magnanimity liberal capitalist system – even one and in the tens of thousands more on a particular issue to advance its in retreat – Moscow’s ruling elites casualties in Syria, not to mention agenda in other areas. There are see the slow passing of a hegemonic, the unknown number of victims of ample illustrations of how, when the US-led world order in which the ‘rules’ covert Russian operations in the UK. West weakens or concedes, Moscow are slanted in the West’s favour and All can be interpreted as collateral entrenches, reinforces tactical gains, Russia’s ‘natural rights’ have been damage from Moscow expressing its and pushes further. ignored. In this context, the Russian dissatisfaction with how the West Above all, the search for com- leadership does not consider its inter- thinks the world should be organized. mon interests is of no help to those ests to lie in following others’ rules. A key point here is the importance of seeking to deter Russia’s worst ex- This presents a number of practical taking the consequences of Russia’s cesses. This is because those actions – challenges for those in the West who foreign policy positioning seriously, from military interventions in Ukraine nonetheless need to deter or respond rather than reducing it to a simple ne- and Syria to digital interference in to Russian aggression. gotiable difficulty. Failure to respond Western democratic processes – are appropriately to Moscow’s declared designed to ensure that Russia’s Russia’s ambitions will mean further assaults place at the top table is maintained. on Western societies, populations They are a fundamental element developmental and democratic institutions. of state policy. prospects are The cooperation illusion Dual options for response The seductive myth that there must Defence of the West, its societies, insti- so poor that the be common ground for coopera- tutions and populations, relies now as tion with Russia must be rebutted. it long has done on strong but cali- country cannot Whereas the West may be able to brated resistance to Moscow through rise within the cooperate artfully with China to a mixture of deterrence by denial and strengthen the rules-based interna- deterrence by punishment. Deterrence established tional order when mutual interests by denial means closing off the possi- align, this will not work with Russia. bility of easy wins for Russia. This en- rules of the China profited from the end of the tails a number of actions: investment Cold War, Russia lost everything. in stronger financial regulation; international China wants to use the system to rise political funding for transparency ini- order. up within it. Russia’s leadership, as tiatives;[4] continued vigilance against mentioned, wants a different sys- Russian malign-influence operations; Russia has been perfectly clear tem altogether.[3] Facing structural the observation of cyber hygiene; that it wants a different international economic decline, Russia cannot fulfil policies to ensure energy security and settlement, one in which no major its supposed great power destiny by protect critical infrastructure (which decisions may be taken without its con- any means that are acceptable to should include legal systems); and sent. Seeing itself (despite all evidence the West. The Kremlin has correctly a robust military posture. None of to the contrary) as an indispensable deduced that Russia’s developmental these steps definitively eliminate the world power, Russia pursues a goal in prospects are so poor that the country Russian threat, but they incremen- the West that consists of re-achieving cannot rise within the established tally diminish the country’s ability the uncoupling of western Europe rules of the international order. to do harm. from eastern and central Europe in In this context, the Kremlin under- Deterrence by punishment re- order to restore a historic sphere stands ‘cooperation’ simply as a means quires the West to impose costs and of influence. to extract compromise and concession. consequences where Russia violates

60 Chatham House Expert Perspectives 2019 international rules or norms. There is removal of broadcasts from the from the front-line states. Poland evidence (where information exists in airwaves – as and when Russian news has ensured that its domestic Russia the public domain) that holding at risk reporting breaches official standards expertise has not faded away, unlike what Vladimir Putin cares about has of impartiality – would have some in so many other Western countries worked on occasions. Economic sanc- impact as a punishment and could where capacity and language skills tions are the most obvious example. boost conformity. This should not be have been eroded. In the Nordic While there is debate over the precise confused with ‘winning’ in the infor- states, children are schooled to iden- extent of their effects – largely from mation warfare space, where Russia’s tify disinformation (fake news) from people who dispute the justification authoritarian machinery gives it the an early age.[7] for such measures in the first place – edge. However, the West doesn’t have Above all, Western policymakers their symbolic value as an admon- to let Russia win quite so easily. must be clear-sighted in recognizing ishment should not be understated. that dealing with Russia requires If in no other way, the effectiveness When they go low … persistence, a willingness to play the of sanctions can be measured by the When resisting Russia, it is critical long game, and an appetite for bearing urgency of the Russian elite’s desire that the West not depart from its short-term economic and diplomatic to have them removed. values to do so, since this would retaliation and the domestic political However, sanctions are insufficient be self-defeating. One positive fallout from it. It also requires recog- on their own, and in any event are model is the package of legislation nition that a firm response cannot and not the only option for responding to recently passed in Australia against should not be reliant on full Western Russian actions. Western commercial subversive Chinese activity. Far unity, which is unrealistic. This, too, diplomacy could exploit Russia’s from representing a departure from underlines the need for sturdier EU di- friendly, if unequal, relationship with Western norms and values, many of plomacy, not always a strong point un- China to drive a wedge between the the measures are aimed at increas- der the current High Representative. two countries. Cautious and appropri- ing transparency.[6] While the immediate impacts of ate Western engagement with China’s resisting Russia’s ambition are likely Belt and Road Initiative, which by- Dealing with to be uncomfortable, the long-term passes Russia, could provide a clear consequences – both for Europe and example to Russia that the latter’s Russia requires for the rules-based international order interests lie in genuine cooperation as a whole – of not doing so would not isolation. persistence, be devastating.  A more forceful option includes proper enforcement of laws and regu- a willingness james nixey is the head of the lations on responsible media behav- Russia and Eurasia Programme iour. These laws, which already exist to play the long at Chatham House. in most European countries, offer the game, and an potential to counter Russian propa- ganda and disinformation more effec- appetite for References tively. Outright bans of RT (formerly [1] In Russian geopolitical thinking, ‘respect’ ‘Russia Today’) and Sputnik, the bearing short- is code for a demand that the West continue to Kremlin’s chief information outlets in respect the borders and rules that defined the the West, would likely be counterpro- term economic USSR until 1991. This covers a further 2 million ductive: not only prompting tit-for-tat and diplomatic square miles of land, and an additional 140 retaliation against Western broad- million people, compared to modern Russia. casters but also reflecting poorly on retaliation. [2] Office of the United Nations High Com- free-speech protections. However, missioner for Human Rights (2019), Report appropriate regulatory penalties Education is also a fundamental on the human rights situation in Ukraine, could still induce both media organ- part of the long-term answer. Threat 16 November 2018 to 15 February 2019, https:// izations to substantially adjust their perception is critical: populations www.ohchr.org/Documents/Countries/UA/ output and behaviour.[5] Regulators need to understand that their coun- ReportUkraine16Nov2018-15Feb2019.pdf could bar Western advertisers from tries have a Russia problem – or, more (accessed 22 May 2019). buying space on Russian channels. accurately, a problem with Russia’s And temporary (but repeated) leadership. As ever, we can learn

Regional perspectives Address Russian Rule-breaking 61 [3] It should also be remembered that Rus- what needs to happen sia possesses networks and local knowledge in central and eastern Europe that China — The West must recognize does not. that Russia rejects the rules-based international [4] ‘Sunlight is the best disinfectant,’ said order, and that any apparent Louis Brandeis. Brandeis, L. (1914), Other ‘cooperation’ is a temporary People’s Money and How the Bankers Use It. tactical expedient in the [5] In the UK, the broadcasting regulator service of the Kremlin’s Ofcom repeatedly announces that it has revisionist agenda. ‘sanctioned’ RT. This is misleading, since the supposed sanctions are no more than warn- — Defence of Western ings or notices of transgression. societies, institutions and populations will continue to [6] Hamilton, C. (2018), ‘Australia’s Fight rely on strong but calibrated Against Chinese Political Interference’, resistance to Moscow, through Foreign Affairs, 26 July 2018, https:// a mixture of deterrence by www.foreignaffairs.com/articles/austral- denial and deterrence ia/2018-07-26/australias-fight-against-chi- by punishment. nese-political-interference.

[7] Mackintosh, E. (2019), ‘Finland is winning — Denial strategies the war on fake news. What it’s learned may should include financial be crucial to Western democracy’, CNN Spe- regulation, funding for cial Report, May 2019, https://edition.cnn. transparency initiatives, com/interactive/2019/05/europe/finland- vigilant cyber hygiene, fake-news-intl/. protection of energy security and critical infrastructure, and a robust military posture.

— Punitive deterrence will continue to involve economic sanctions, which have a marked effect on the Russian elite.

— Other measures must include enforcement of laws and regulations on responsible media behaviour, in order to limit Russian outlets’ ability to disseminate disinformation.

62 Chatham House Expert Perspectives 2019 18. politics and international cooperation

EMBRACE SOFT POWER (BUT RECOGNIZE ITS LIMITS)

by Champa Patel

ASEAN’s consensus-driven system has enabled diverse states to coexist within a supranational order. But without harder rule-making, the Southeast Asian grouping may struggle to address emerging regional security challenges.

Regional perspectives Embrace Soft Power (but Recognize its Limits) 63 joseph nye, when writing his challenges to balance: the impacts region faces several challenges in mak- seminal work on soft power, defined of natural disasters and cross-border ing these principles a reality. The main it as the ability of a country to per- crises; territorial tensions such as tension is how the primacy of non- suade others to do what it wants those in the South China Sea; and the interference, consensus decision- without force or coercion. The three increasing great power competition be- making and the non-use of force pillars of his conception of soft power tween China and the US. With all these undermines attempts at a coherent were political values, culture and considerations in play, the impact of approach to crises within the region. foreign policy.[1] The Association of ASEAN’s soft power approach is une- Southeast Asian Nations (ASEAN), ven, more effective in some contexts The principle of an intergovernmental body comprising than in others. 10 countries from the region, is an The most promising area is eco- non-interference embodiment of soft power in practice. nomic relations. Unlike the EU, ASEAN ASEAN’s consensus-oriented model began life as a political initiative. The could provide offers a constructive, if limited, means original five members – Indonesia, of managing a membership that shares Malaysia, the Philippines, Singapore cover for few obvious commonalities. But and Thailand – first came together to despite decent prospects for economic reduce regional tensions but also to governments, integration, how will this model cope work as a bloc against communist-led as they know any with emerging regional challeng- insurgencies. It was not until 1993 es where more binding rules may that economic integration became use of violent be demanded? a strong plank of the body, culminating The core principles and in the establishment of the ASEAN means – despite norms underpinning ASEAN are Economic Community in 2015. One enshrined in the Treaty of Amity key part of this agenda is the Regional any criticisms and Cooperation, signed at the first Comprehensive Economic Partnership made – would not ASEAN Summit in 1976. Broadly (RCEP), launched in 2012, which seeks speaking, these are a) respect for to bring together ASEAN members’ lead to an active the sovereignty and territorial integri- existing free-trade agreements with ty of member nations; b) non- six other Asia-Pacific countries into intervention. interference in the internal affairs one accord.[3] Once implemented, of one another; c) peaceful dialogue, RCEP could cover an aggregate popu- Non-interference in the affairs non-confrontation and consensus; lation of 3.6 billion spread across econ- of another country is hard-wired and d) non-use of force in dispute set- omies with a combined GDP of $25 into the ASEAN system. It must be tlement.[2] Collectively often referred trillion.[4] As Peter Petri and Michael acknowledged that the primacy of to as the ‘ASEAN way’, these principles Plummer note, in the contemporary this norm is what has enabled such and norms were later incorporated context of protectionism and populism, a wide range of member countries into the ASEAN Charter, which RCEP is both a ‘developing country-cen- to coexist within the same body. came into force in 2008, signalling tric [and] pro-integration alternative However, the rise of transnational the shift from a loose alliance of coun- on an unprecedented scale’.[5] It could peace and security issues – including tries to a more formal organization. be a game-changer for ASEAN, not cross-border terrorism, refugee and ASEAN member states encompass only establishing a shared market of migrant flows, trafficking and illicit a hugely diverse region. A wide range monumental size but also illustrating financial flows – puts into question of governance models (democracies, the organization’s ability to bring whether this approach can be effective authoritarian regimes, military together a wide range of stakeholders in response to complex problems that governments) coexist with countries to achieve a common goal. affect multiple countries. encompassing some of the world’s In contrast, ASEAN’s approach to For example, there is no mecha- major faiths (Islam, Buddhism and peace and security illustrates some nism to invoke a response, without Christianity). ASEAN members also of the limits of soft power. Although a nation state’s consent, to actions range from wealthy states (Singapore) there has been a high degree of that represent a regional threat to to some of the poorest (Myanmar). In institutional development of peace peace and security. As such, any addition to contending with this inter- and security norms – as embodied ASEAN member that poses a threat nal heterogeneity, ASEAN has multiple in the 2012 ASEAN Concord II – the of this kind can be confident that no

64 Chatham House Expert Perspectives 2019 real action is possible against it. The example, in 2012 and again in 2016, this is an important development risk, therefore, is that the principle of Cambodia blocked a joint ASEAN in shaping and building norms. non-interference could provide cover statement on the South China Sea For ASEAN to be an effective for governments, as they know that issue, a move perceived by some peace and security actor, it needs any use of violent means – despite any as reflecting Chinese influence on to marry non-intervention with criticisms made – would not lead to an the country’s position.[9] Without a greater investment in preventive active intervention.[6] ASEAN’s peace consensus, the bloc had nothing diplomacy. It also needs to recognize and security norms lack the type of meaningful to say on one of the when the limits of this type of diplo- enforcement powers that would be major issues in the region. macy have been reached and stronger needed to tackle such issues. recourse is needed. Preventive The Rohingya crisis in Myanmar For ASEAN to diplomacy is an important part of is illustrative of this problem. the toolkit for ASEAN, as it chimes ASEAN’s non-confrontational response be an effective with its doctrine of non-interference has had no impact in preventing the in the internal affairs of member forced displacement of Rohingya people peace and countries. However, this should not into neighbouring Bangladesh, nor be to the detriment of also working has it provided any means to agree security actor, more through multilateral institu- constructive ways forward.[7] Some tions, such as the UN, and potentially member states, such as Indonesia, tried it needs to through non-governmental organiza- to use bilateral diplomacy to ameliorate marry non- tions, to find solutions to challenging the situation. Others, such as Malaysia, situations. ASEAN could also under- took on a more outspoken stance intervention take peer-to-peer learning, for exam- and were openly critical. As a collective, ple through formal dialogues with the however, ASEAN has been ineffective with a greater African Union, to better understand at pressuring Myanmar to improve how other regional bodies have its treatment of the Rohingya people. investment balanced respect for state sovereignty Beyond the difficulties associated with in preventive with a more active role on peace the norm of non-intervention, the and security issues. need for collective agreement makes it diplomacy. There is a risk that norms may difficult for ASEAN to achieve cohesive become redundant if their develop- positions on contentious issues. However, progress is possible. ment goes beyond what states are pre- Increasing pressures resulting When Cyclone Nargis hit Myanmar pared to accept. The ASEAN way, while from the formidable rise of China in 2008, the country struggled to it may seem ponderous, has avoided add further complexities. For example, respond to the devastation. The major conflict in the region since the on the South China Sea issue, China and government compounded the organization’s inception. Furthermore, several ASEAN states share overlapping crisis by blocking aid and support issues that were once considered too claims. ASEAN first committed to find- from some international agencies. sensitive, such as human rights, have ing a peaceful resolution in 1992 but has ASEAN took on a brokering role, become part of the ASEAN archi- struggled to form a legally binding posi- acting as a bridge between Myanmar tecture. However, without greater tion on maritime disputes in the South and the international community, institutionalization or means to enforce China Sea. It was not until 2002 that and helped ensure the delivery of accountability, any progress will always a Declaration on the Conduct of Parties aid. Another illustration of how be at risk. Moving forward, the greatest in the South China Sea was agreed, and ASEAN can play a more construc- challenge for ASEAN as a peace even this agreement is non-binding. tive role on contentious issues was and security actor is whether it can There is an argument that the establishment, in 2009, of the go beyond its established norms to with greater political and economic ASEAN Intergovernmental promote greater stability in the region, engagement with China, the ‘internal Commission on Human Rights or whether its commitments will relations of ASEAN itself’ are being (AICHR). Though sensitivities about remain unfulfilled promises.  transformed.[8] Put simply, China criticism of human rights abuses also has deep bilateral relationships remain an obstacle to more robust champa patel is the head of with ASEAN countries, which may rule-making, and the commission the Asia-Pacific Programme factor into any decision-making. For lacks enforcement mechanisms, at Chatham House.

Regional perspectives Embrace Soft Power (but Recognize its Limits) 65 References what needs to happen [1] Nye, J. S. (2004), Soft power: The means to success in world politics, New York: — A consensus-driven Public Affairs. model has enabled the coexistence of diverse [2] ASEAN (2016), ‘Treaty of Amity and member states within Cooperation in Southeast Asia’, Indonesia, the ASEAN system, but 24 February 1976, https://asean.org/trea- the resulting constraints ty-amity-cooperation-southeast-asia-indone- on governance need to be sia-24-february-1976/. overcome if the grouping [3] For further information, see ASEAN is to remain relevant. (2016), ‘Regional Comprehensive Economic Partnership (RCEP)’, https://asean.org/?stat- — The doctrine of non- ic_post=rcep-regional-comprehensive-eco- intervention can impede nomic-partnership. meaningful action on peace and security challenges. [4] Petri, P. A. and Plummer, M. (2018), To be effective, non- ‘The Case for RCEP as Asia’s Next Trade intervention needs to be Agreement,’ Brookings, 6 November 2018, married with investment https://www.brookings.edu/blog/or- in preventive diplomacy. der-from-chaos/2018/11/06/the-case-for-rcep- as-asias-next-trade-agreement/. — ASEAN also needs to

[5] Ibid. recognize when the limits of this type of diplomacy have [6] Thalang, C. N. (2017), ‘Brokering Peace been reached and stronger in Southeast Asia’s Conflict Areas: Debating recourse is needed. the Merits of an ASEAN Peacekeeping Force’, Heinrich Boll Stiftung Southeast Asia, 7 August — ASEAN could work 2017, https://th.boell.org/en/2017/08/07/ more through multilateral brokering-peace-southeast-asias-conflict-are- institutions such as the as-debating-merits-asean-peacekeeping-force. UN, and potentially also through non-governmental [7] For further information, see Wake, C. and organizations, to address Yu, B. (2018), The Rohingya crisis: Making regional problems. the transition from emergency to longer-term development, Overseas Development Institute — It could also undertake Humanitarian Policy Group, Policy Brief 71, peer-to-peer learning, for March 2018, https://www.odi.org/publica- example through dialogues tions/11085-rohingya-crisis-making-transi- with the African Union, tion-emergency-longer-term-development. to better understand how [8] Storey, I. (2013), ASEAN and the Rise of other regional bodies have China, London: Routledge, cited in Beeson, M. balanced recognition of (2016), ‘Can ASEAN Cope with China?’, Jour- state sovereignty with a more nal of Current Southeast Asian Affairs, active conflict-prevention 35:1, pp. 5–28. or mediation role.

[9] AFP, Baliga, A. and Sokheng, V. (2016), ‘Cambodia again blocks ASEAN statement on South China Sea’, Phnom Penh Post, 25 July 2016, https://www.phnompenhpost.com/ national/cambodia-again-blocks-asean-state- ment-south-china-sea.

66 Chatham House Expert Perspectives 2019 19. security

RETHINK STATE-BUILDING IN THE MIDDLE EAST AND NORTH AFRICA

by Renad Mansour and Tim Eaton

To have any chance of success, post- conflict governance models for Iraq and Libya must acknowledge ‘hybrid’ armed groups and incorporate them in rebuilding the state, but focus on improving their accountability.

Regional perspectives Rethink State-building in the Middle East and North Africa 67 state weakness and protracted into state structures but have never One example is Iraq’s Popular conflict continue to plague Iraq and integrated them into unitary chains of Mobilization Units (PMU), or Libya. A breakdown of the unitary command, or held them accountable al-hashd al-shaabi. The PMU emerged state, competition for power and to civilian governance structures.[1] as a collection of defence forces in influence, and the absence of a social response to the rapid rise of Islamic contract all continue to drive conflict, The primary State of Iraq and Syria (ISIS) in 2014. while allowing a proliferation of local In today’s post-ISIS context, the PMU armed groups to flourish. Yet while miscalculation forces have not gone home. Instead, such groups in both countries are they have expanded their roles as often viewed solely as security actors, in the Western political and economic actors. In na- many of them are better considered tional elections in mid-2018, the PMU as ‘hybrid’ networks that also span the approach is to electoral coalition, the Fateh Alliance, political, economic and social spheres. placed second. Beyond the PMU, and Western policies to mitigate the threats overemphasize throughout Iraq, groups ranging from presented by these groups must there- the military Kurdish Peshmerga paramilitaries to fore extend beyond security-based Sunni tribal and non-dominant ethnic interventions to necessarily inclusive dimension, community fighters compete (and at and political approaches focusing on times cooperate) with the state for accountability as a route to peace. For defining groups power, capability and legitimacy.[2] the beginnings of a durable rules- In Libya, a large number of based order to emerge, assumptions by their armed armed groups of different social and about the dynamics of state power status. political complexions have developed in the Middle East and North Africa since 2011. Most notably, the Libyan (MENA) must be reconsidered. Why, then, is current Western Arab Armed Forces (still widely known The encroachment of armed policy on armed groups in Iraq and as the LNA)[3] have grown from a lim- groups into civilian life in these coun- Libya still guided by this failed frame- ited set of actors in 2014 into a broad tries is all too evident. In the absence work? The problem stems in part from alliance that now generates revenue of effective governance or public the West’s normative stance on the through parallel civilian institutions services, militias and paramilitaries Westphalian state system, wherein the in the east of the country. LNA forces in both Iraq and Libya are carving existence of non-state or hybrid armed have established a military investment out niches and establishing their own actors is seen as undesirable in and of authority, and have deposed elected social contracts with local populations. itself. Policymakers therefore focus on civilian officials in order to wield po- Not only are they generating revenues the crimes committed by these groups, litical power directly. In April, the LNA from state and non-state sources in without applying the same standards launched a military offensive on the exchange for the promise of protection to de jure state armed groups. We Libyan capital, Tripoli. and, in some cases, services; they are contend that militias should not be The essence of the situations also positioning themselves to be part considered a problem merely because described above is that no military of any political settlement, with the in- they lack de jure recognition, but only solution awaits that will bring lasting tention of cementing their presence in where their actions result in negative stability to Iraq or Libya or remove post-conflict governance structures via outcomes for local populations, such these groups. Integration, demobiliza- cadres in political and economic fields. as rights abuses, service delivery tion and kinetic military action appear In response to this phenomenon, failures, and monopolistic economic unfeasible. So what should the goal many Western peacekeeping and and political approaches. of Western efforts be? state-building initiatives continue to The primary miscalculation in Here, we contend that greater focus on either the demobilization of the Western approach is to over- emphasis should be placed on politi- armed groups or their integration into emphasize the military dimension, cal approaches that demand account- official ‘state’ forces, in order to estab- defining groups by their armed status. ability at multiple levels. The focus lish a monopoly over legitimate vio- In reality, many militias are hybrid should not be on all armed groups, but lence. However, such approaches have actors that also serve state functions. specifically on those that are becoming never worked in the region. From Iran Their membership includes politicians, hybrid actors yet negatively affect- to Saudi Arabia, political settlements businesspeople, engineers, doctors ing local residents and the state in have incorporated armed groups and other professionals. their countries.

68 Chatham House Expert Perspectives 2019 The first layer of accountabil- of law. Many armed groups claim Given the above, Western ef- ity should come from the people to be officially recognized actors forts to challenge armed groups’ living under such groups. Many seeking to build the state.[6] The state-building narratives need to hybrid actors depend on an ele- LNA presents itself as the legitimate include several elements. One is to ment of legitimacy and popularity army of the state, although this is call groups out on violations of the to maintain a social contract with contested by elements not aligned rule of law and human rights. A big- local residents: displaying images of with its leader, Field Marshal Khalifa ger role for Western interlocutors, martyrs, providing social services, Haftar. The replacement of elected however, is to support independent and mimicking state functions.[4] mayors with military governors in legal institutions – local and federal – In Libya, the LNA has leveraged its eastern Libya has also illustrated the in becoming more effective. The laws nationalist credentials, purporting to LNA’s expansion into politics and in Iraq and Libya exist, and the armed base its military expansion upon the civilian life. While such approaches groups claim to be interested in guarantee of stability, state function may be acceptable to local popula- upholding them. The gap, then, is the and a crackdown on ‘criminals’ and tions during conflict, the role of the absence of a body in either country ‘terrorists’. Restoring stability and LNA’s interventions in governance in that can hold the groups to account. functioning governance is a popular places such as Benghazi, where wide- Such a body could take the form of an and effective means of generating scale violence has come to an end, empowered integrity commission or local support. is more controversial. audit bureau, which would monitor However, over time these groups and investigate abuses of power typically fall victim to failed govern- A big role and rights violations. ance and begin to lose popularity. In sum, we propose to shift the Corruption and an inability to deliver for Western conversation on state-building and services are already clear shortcom- armed actors in MENA away from the ings of the PMU, and in 2018 protests interlocutors failed Westphalian notion of integra- in the southern Iraqi province of tion towards accountability. A new Basra began targeting PMU offices. is to support approach should reflect the reality that Meanwhile, the LNA’s expanding role armed groups in the region operate in in civilian governance has come under independent a zone where the distinctions between question as military operations in legal institutions political, economic, societal and mili- areas under its control have largely tary networks are blurred, and that fo- been concluded. Civilian authorities in becoming cusing solely on the latter will not question why the LNA should take end conflict.  a role in services such as rubbish more effective. collection and the granting of visas renad mansour and tim eaton to migrant workers.[5] Armed groups’ ability to sustain are research fellows with the Middle Politically targeting the groups their legitimacy is likely to be further East and North Africa Programme that negatively affect local welfare undermined over time by human at Chatham House. and undermine the state means rights abuses – an accusation con- picking away at their legitimacy and stantly levelled, for example, against weakening their links to the civilian the PMU.[7] Many locals across References population. This process requires southern Iraq allege that PMU forces [1] Sayigh, Y. (2018), ‘Hybridizing Security: supporting local initiatives that can act with impunity, beyond the control Armies, Militias and Constrained Sovereign- be relied upon when incumbent armed of the police and courts. In Libya, ty’, Carnegie Endowment for International groups prove unable or unwilling to meanwhile, civilian leaders claim Peace, 30 October 2018, https://carneg- uphold the social contract. For now, that whatever the LNA cannot obtain ie-mec.org/2018/10/30/hybridizing-securi- however, independent civil society through legal means it will obtain ty-armies-militias-and-constrained-sovereign- organizations and protests remain through others. The group is similarly ty-pub-77597/. two of the only channels through accused of widespread human rights [2] Mansour, R. (2018), ‘The Popular Mobi- which citizens can voice concerns violations. Mahmoud al-Warfalli, lisation Forces and the Balancing of Formal about the dominance of such groups. an LNA officer, has been indicted and Informal Power’, Middle East Centre Blog, Another layer of accountability for war crimes by the International London School of Economics and Political is to state institutions and the rule Criminal Court.

Regional perspectives Rethink State-building in the Middle East and North Africa 69 Science, 15 March 2018, https://blogs.lse. what needs to happen ac.uk/mec/2018/03/15/the-popular-mo- bilisation-forces-and-the-balancing-of-for- — Western policymakers mal-and-informal-power/. must abandon narrowly securitized approaches [3] Libyan National Army. to tackling conflict-related [4] El-Ghobashy, T. and Salim, M. (2018), instability in Iraq and Libya. ‘Iraqi election seen as a contest between Iran’s challenger and America’s incumbent’, — New approaches must Washington Post, 11 May 2018, acknowledge the de facto https://www.washingtonpost.com/world/ legitimacy of non-state and middle_east/iraqi-election-seen-as-a-con- hybrid armed groups, give test-between-irans-challenger-and-amer- them a qualified role in state- icas-incumbent/2018/05/10/7bfc4912- building, but emphasize 538f-11e8-a6d4-ca1d035642ce_story. accountability. html?utm_term=.98e8adef8fa8. — Support should prioritize [5] Eaton, T. and Eljarh, M. (2019), helping independent ‘Will Economic Instability Undermine legal institutions – local Khalifa Haftar’s Offensive in Libya?’, and federal – to become Chatham House Expert Comment, more effective. 16 April 2019, https://www.chathamhouse. org/expert/comment/will-economic-in- — Where militias continue stability-undermine-khalifa-haftar-s-offen- to create instability, policy sive-libya. must weaken their legitimacy [6] El-Ghobashy and Salim (2018), ‘Iraqi by challenging their narrative election seen as a contest between Iran’s of state-building and essential challenger and America’s incumbent’. service provision.

[7] Amnesty International (2017), Iraq: Turning a Blind Eye: The Arming of the Popular Mobilization Units, https://www.amnesty. org/en/documents/mde14/5386/2017/en/.

70 Chatham House Expert Perspectives 2019 CHATHAM HOUSE EXPERT PERSPECTIVES 2019