America’s duplicity

 

 

The current crisis in Ukraine, or more particularly in the Crimean peninsula, has become a conundrum that is both as old and as new as the issue of self-determination. To the United States and Europe, Crimea is but a smokescreen for Russian invasion.

 

Sevastopol in Crimea is home to Russia’s Black Sea Fleet since 1783, thus emphasizing the great strategic military value of the peninsula to the Russians. Crimea has also strong historical and ethnic ties to Russia or to the old Soviet Union before Khrushchev gave it up to Ukraine, and its population predominantly speak Russian as their language.

The Black Sea and Sevastopol, home of the Russian Black Sea Fleet. Photo courtesy of
Wikimedia.

Now the pro-Russian regional Parliament in Crimea has voted to hold a referendum on whether to secede from Ukraine and become part of the Russian Federation, a decision immediately condemned by the United States and Europe as a violation of the constitution of Ukraine and international law. Ignoring sanctions like suspension of negotiations on wide-ranging political-economic issues, travel bans, asset seizures and cancellation of a planned E.U.-Russia summit meeting, Russia appears to be tightening its grip over Crimea and testing the political will of the West, especially the United States.

 

Whether the proposed referendum has legal grounds is certainly problematic even though Article 73 of the Ukrainian constitution provides that altering the territory of Ukraine must be resolved exclusively by an All-Ukrainian referendum. Reality is not merely a cut-and-dried constitutional issue. Attempts toward secession in other countries have shown that it also requires recognition by other states and a form of negotiation between the seceding territory and the central government.

 

For instance, on the issue of Quebec’s referendum for secession in 1998, the Supreme Court of Canada ruled that neither the Quebec government nor its legislature has the legal right under Canadian constitutional law or under international law to unilaterally secede from Canada. The court however emphasized that the rest of Canada would have a political obligation to negotiate Quebec’s separation if a clear majority of that province’s population voted in favour of it. This has reinforced the belief of the separatist Parti Quebecois that the people of Quebec have a legitimate aspiration for independence based on the authority of a mandate from the people. Although Quebec’s secession from Canada did not materialize when the Parti Quebecois lost in the referendum, the dream of an independent Quebec continues.

 

Scotland is also voting for independence from the United Kingdom in September 2014. The British government has agreed to hold the referendum and the prospect of a separate Scotland is already dividing many citizens in the UK. In the Philippines, the proposed Bangsamoro nation that was brokered by the Aquino administration with the Moro Islamic Liberation Front (MILF) is about to be tabled in Congress despite attempts by renegade groups like the Moro National Liberation Front (MNLF) and the Bangsamoro Islamic Freedom Fighters (BIFF) to derail the peace process. The Bangsamoro framework agreement entails carving out an autonomous region for Filipino Muslims in Mindanao that will alter the entire breadth of the Philippine territory. There are those who argue that this is only possible by amending the Constitution. Consider, too, that the referendum to ratify the Bangsamoro law is at least about two years away.

 

While Crimea is an autonomous republic in Ukraine, with its own powers under the Ukrainian constitution, its secession could depend not necessarily on the legal provisions of the national constitution, but also on the mandate of its people as determined through a popular referendum. The United States and Europe could raise their objection on whatever legal or moral grounds but in the end it is the people of Crimea who will decide their fate.

A rally backing Russia in Sevastopol in Crimea. Photo by Viktor Drachev/
Agence-France-Presse--Getty Images.

Instead of conducting the Crimean referendum under duress of Russian military occupation, Russia’s willingness to negotiate with the Ukrainian parliament for a genuine referendum could probably soften Crimea’s impending secession. Just like in the Quebec secession where the Canadian Supreme Court for the first time introduced the concept of a constitutional duty to negotiate, absent any provision in the Constitution or in international law authorizing secession by a part or territory of a state. Or as in the ongoing negotiations between the Philippine government and the MILF for a separate Bangsamoro government, which ultimately aims to establish a separate state within an existing state. In the final analysis, whatever the Crimean people choose—whether to secede from Ukraine or join the Russian Federation—must be respected. Of course, this is easier said than done.

 

The trouble with the United States and Europe which have denounced the legality of the Crimea referendum is their inconsistency and double-standard policy when it comes to the struggle for self-determination of countries or states not belonging to their political bloc.

In 1999, the United States supported Kosovo’s bid for secession from Serbia while Moscow saw it as an infringement of Serbia’s sovereignty. Kosovo ultimately gained independence in 2008.

Now 15 years later, the US and Russia are at odds again, but they have switched sides. Russia supports Crimea’s right to break off from Ukraine while the United States calls it illegitimate, a showdown that revives a long-drawn debate over the right of self-determination versus the territorial integrity of nation-states.

Former Ukrainian President Viktor Yanukovych, who was duly elected, was ousted by a coup. No matter how you describe it, it was a demonstration supported by the West as a protest against a pro-Russian dictator. Yanukovych was seen as anti-Europe when he abandoned a trade agreement with the European Union. After fleeing Kiev and showing up in Moscow seeking help from Russian President Vladimir Putin, Russian troops took over Crimea on the pretext that they were protecting Russian interests in the region.

 

This double-standard policy was evident during the crises in Tunisia, Egypt and Libya. The United States supported the public demonstrations and protests against the corrupt and repressive governments of these countries only to cuddle the succeeding regimes which are equally repressive and even more corrupt. American foreign policy plays favourites with repressive and not-so-democratic countries like Pakistan by pouring in millions of dollars in military assistance to fight the Taliban, yet it condemns repression in Iran and North Korea which happen to fall outside its circle of allies.

 

Duality or duplicity in American foreign relations was already evident two hundred years ago when the US forced Spain to agree to a treaty that extended American frontiers. Yet, John Quincy Adams who helped draft the Monroe Doctrine said: “We are friends of liberty all over the world, but we do not go abroad in search for monsters to destroy.” Exactly what the Americans are doing now in Ukraine, in the never-ending Middle East conflict, and in the simmering dispute between China and its neighbours over some islands and rock formations on the China Sea.

 

The United States has used the Monroe Doctrine in authorizing intervention against aggression by other countries, yet at the same time the doctrine espoused neither interference nor meddling in the internal concerns of other countries. The Iraq invasion and the Gulf War are recent examples of the application of the Monroe Doctrine with a little tweak—by involving the support of American allies. Afghanistan’s invasion could also qualify under the umbrella of the Monroe Doctrine except that it was a response to the war on terror, a new twist in justifying American intervention.

 

Last November 2013, US Secretary of State John Kerry told the Organization of American States (OAS) that that the Monroe Doctrine was dead. Not really true. While Kerry was apparently calling for mutual partnership with other countries in the Americas, it was essentially in keeping with Monroe’s initial message than with the policies the US government had enacted long after Monroe’s death. Noam Chomsky called the Monroe Doctrine as America’s endearing rationale for declaring hegemony and the right of unilateral intervention all at the same time.

 

Crimea’s future has already been sealed. It will eventually join the Russian Federation despite censure from Ukraine, the United States and its allies in Europe. Sanctions against Russia will probably intensify but in the end will not matter much.

 

Vladimir Putin and the Russian Army are marching ahead towards gradual partitioning of the countries that used to be satellites of the old Soviet regime and picking up one territory after another. Will Putin be able to restore Russia’s superpower status which it lost during the end of the Cold War in the 1990s?

 

It’s still too early to say. The Crimean crisis or the ongoing disputes among other countries elsewhere in the world, however, clearly indicate that at the heart of all these tensions is a much broader conflict. It is not about the quarrel between the smaller protagonists, i.e., between Crimea and Ukraine, or Bangsamoro and the Philippine national government, or between those for or against Scottish independence.

 

This could be what Samuel Huntington called the emergence of a “multipolar” world, where the United States hangs on as the only superpower but must now come to terms with other regional powers who resent interference in their own spheres of influence, whether by the United States alone or with its coalition of the willing.

Spratlys war of words must stop

Overlapping territorial claims to the Spratly Islands by China, the Philippines, Vietnam, Taiwan, Malaysia and Brunei have escalated the conflict in this region to a new high. China, Vietnam, and the Philippines, the three most assertive in their claims, have engaged in naval clashes before and there is prospect of more in the future.

United States cruisers operate in the South China Sea. Photo by Former Navy Gallery.

While China and Vietnam continue to flex their muscle by staging military exercises in the South China Sea, the Philippines, the weakest military-wise, is not to be outdone. With U.S. troops and naval ships under the Visiting Forces Agreement between the Philippines and the United States, both countries have been conducting their military games a few kilometres away from the disputed islands, prompting Beijing to complain that the exercises were an indirect offence to China’s sovereignty.

More than a territorial dispute

Clearly, this is more than a mere squabble over territory.

Ever since reports were published that the Spratlys may be sitting on enormous reserves of oil and natural gas, the jockeying between these three countries has never been more intense. China appears to be the most eager to lay its hands on Spratlys oil. Its booming economy needs the vast energy resources that Spratlys can provide. Vietnam and the Philippines can surely make use of Spratlys wealth to provide for their country’s needs.

The disputed Spratly Islands in the South China Sea. Photo by Google earth. Please click
the following  link to view http://www.youtube.com/watch?v=W-CDMSOGaRY,
"The South Cina Sea: Troubled Waters."

A 1969 United Nations report indicated probable rich hydrocarbon deposits in the Spratly Islands. The international oil industry has compared the Spratly petroleum deposit to an elephant with the potential to produce over a billion barrels of oil.

Each of the claimant countries shapes their claim on a variety of arguments, ranging from historical evidence of discovery and occupation to arguments based on international law principles and the UNCLOS provisions. Every state is sticking to their territorial claim of sovereignty, which for the most part is weak but no one is willing to budge.

The evidence presented by China, Taiwan and Vietnam to support their historical claims is unconvincing, if not dubious at most. Their evidence merely illustrates their countries’ intermittent contact and brief occupation of the islands. The same is true with the claims of the Philippines, Malaysia and Brunei which all suffer from factual weaknesses and legal misinterpretations.

Sovereignty claims are driving the Spratly Islands conflict to the edge of brinkmanship. It is now a war of words between China, the Philippines and Vietnam. This sabre-rattling must stop if they want a reasonable and equitable settlement of their dispute. Otherwise, they face the possibility of a military confrontation. In the end, whoever has control of the Spratly Islands will have hegemony in the entire region.

International case law

Two cases in international law are worth reviewing in regard to the conflicting territorial sovereignty claims over Spratly Islands.

The Island of Palmas case, decided by the Permanent Court of Arbitration in 1928, set forth the factors necessary in establishing territorial sovereignty over an island. In Palmas, the case is about the conflicting sovereignty claims of the United States and the Netherlands over an isolated, but inhabited island located between the Philippines and the former Dutch East Indies. The U.S. claimed that Spain originally discovered Palmas Island and subsequently ceded title to the United States under the Treaty of Paris.

The United States also based its claim on the island's contiguity to the Philippines. The Netherlands, on the other hand, claimed sovereignty based on their peaceful and continuous display of state authority over the island.

The court awarded Palmas Island to the Netherlands and held that the mere act of discovering an island results only in inchoate title and does not suffice to establish sovereignty unless the discovery is followed by a continuous and peaceful display of authority or some degree of effective occupation.

In contrast, the Permanent Court of Arbitration held in the Clipperton Island case that France's discovery and declaration of sovereignty in a Honolulu journal were sufficient to establish sovereignty over an uninhabited atoll. The court concluded that in some instances, where the territory claimed is completely uninhabited, the requirement of effective occupation may be unnecessary.

The Clipperton case involved the sovereignty claims of France and Mexico over an uninhabited atoll located off the coast of Mexico. France argued that a French Lieutenant claimed the island on behalf of the French government in 1858, while Mexico claimed ownership by way of cession from Spain.

The Clipperton Island case is relevant to the Spratly Islands dispute because the islands are similarly isolated and uninhabited. However, higher standards for effective control may be applied in the Spratly Islands dispute because of the number of claimant countries involved and the complexity of their claims. The International Court of Justice also held that when an ambiguity exists, actual displays of authority, evidence of possession, and acquiescence by other states to the exercise of sovereignty are of decisive importance in determining sovereignty issues.

Each of the countries in the Spratlys dispute has made attempts to occupy the islands. Taiwan, for example, has continuously occupied Itu Aba since 1956, and Vietnam, the Philippines, Malaysia, China and Brunei have each controlled several features of the archipelago. These occupations most likely satisfy the Palmas standard of a continuous display of authority. Other claimant countries, however, have protested and not acquiesced to these sovereign displays.

UNCLOS has little impact

In 1982, the United Nations United Nations Convention on the Law of the Sea (UNCLOS) was adopted. While UNCLOS embodies customary international law and governs practically every aspect of ocean management, it is of little impact in the Spratly Islands dispute since it fails to provide specific guidelines for delimiting maritime boundaries, especially where there are overlapping claims. The only guidance UNCLOS provides is that boundary disputes involving the continental shelf or exclusive economic zone (EEZ) shall be resolved by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, to achieve an equitable solution.

Both China and Vietnam have rejected Philippine challenges to elevate the Spratly Island dispute to a special tribunal created under UNCLOS for maritime disputes or to the International Court of Justice. It is rather obvious that China and Vietnam would have difficulty substantiating the legal basis for their claims. However, China is agreeable to a joint undertaking to explore Spratlys’ natural wealth but only on a bilateral basis.

Possible joint development zone

Settlement of the Spratlys dispute by an international court or tribunal appears to be beyond the immediate horizon. The only alternative, which may work in the best interests of all the countries, would be to establish a joint development zone. Previous studies in the past have stressed the need to implement more confidence building measures among the claimant states. There was also a proposal made to establish a three-tiered joint development agreement, consisting of twelve separate joint development zones.

More than fifty years have passed, yet the settlement of Spratlys dispute appears headed nowhere. The Spratly claimants, perhaps, can learn some lessons from the negotiations over the Timor Gap, originally between Australia and Indonesia, and later between Australia and East Timor, when the latter seceded from Indonesia to become an independent state.

Originally known as the Treaty between Australia and the Republic of Indonesia on the zone of cooperation in an area between the Indonesian province of East Timor and Northern Australia, the treaty provided for the joint exploration of petroleum resources in a part of the Timor Sea seabed which was claimed by both countries. East Timor at the time was invaded by Indonesia and was annexed as its province. The negotiations between Australia and Indonesia and the ultimate signing of the treaty were criticized as Australia’s de jure recognition of the Indonesian invasion and annexation of East Timor.

Lessons from Timor

When East Timor seceded from Indonesia in 1998, a new treaty was negotiated resulting in the Timor Sea Treaty. Although the negotiations over Timor Gap had a long and complex history, Australia and independent East Timor have generally accepted that the issue of East Timor’s maritime boundary is much less important than the wealth that could be generated for the new country by the exploitation of the Timor Sea resources.

Cumulative oil slick footprint in the Timor Sea, August 30, 2009. Photo by Sky Truth.
Please click the following link http://www.youtube.com/watch?v=-XyatkST4m8 to
view "The Timor Gap - East Timor."

The new Timor Gap Treaty which was signed on July 5, 2001, guaranteed that the East Timorese and Australian economies would both benefit from the sea’s oil resources, instead of keeping a protracted conflict over which country owns the seabed and has jurisdiction to its resources. Time will tell when the issue of sovereignty shall again arise between the two countries since no one is willing to give ground on its respective position, although anything is possible once the oil is gone.

Spratlys’ competing states could similarly opt to follow the Timor Sea Treaty framework. Exploit the archipelago’s vast reserves of oil and natural gas, share the fruits among them based on their permanent economic interests to their territorial claims, and decide on the sovereignty conflict later, perhaps after all the oil is gone.

Both international law and the UNCLOS fail to provide a definitive answer to the Spratly Islands dispute. Any solution, however, will take time. By agreeing to a provisional joint development plan that will benefit every claimant state, the countries will at least be able to jointly and equitably exploit the natural resources of Spratlys, or until they can agree on a more permanent solution.