Discorso “Global Security and the Rule of Law”

27 Marzo 2015

Scores of Treaties, declarations and policy statements over the last decade have been aimed at strengthening a principle which I consider by far the most significant among those enshrined in the 2000 UN Millennium Declaration. The principle that Human Rights and the Rule of Law are fundamental pillars for peace, development and democracy.

 

With the Millennium Declaration the member States of the United Nations resolved to strengthen respect for the rule of law in international as in national

affairs, assuring compliance with the UN Charter and the International Court of Justice decisions.

 

Systemic violations of human rights, intolerance towards political or religious belief, suppression of individual freedoms, are the most frequent  sources of conflict between States and within States. Disregard for the Rule of Law happens to be a common denominator whenever a settlement by force substitutes a settlement by law, or arbitrary power overcomes reliance on law.

 

The appalling sequence of crises spreading along the borders of the European Union, from the Black Sea to the Mediterranean region, makes more and more evident how many violations exist to “a principle of governance in which all persons and entities, including the State itself, are accountable to laws promulgated, consistent with international human rights norms and standards” (UNSG 8/23/2004 Report to the UNSC).

 

Asia is all but immune to these symptoms. In addition to the considerable number o contentious issues existing in this Continent, security of Asian countries appears increasingly influenced by challenges to the global security grown in other, even distant, regions of the world .

 

Fighting against the Islamic State (Daesh) is considered a compelling responsibility  by Asian countries which most highly value human rights and dignity, and the  Rule of Law. That was the clear message send to the international community  last  December 3rd at the Counter-Isis meeting in Brussels; a message send, namely, by the Republic of China, Japan, the Republic of Singapore, the Republic of Korea.

 

In fact, Taipei’s commitment could not have come as a surprise.  President Ma Ying-jeou had solemnly reaffirmed on the occasion of ROC National Day last year that Taipei stands as a model of democratic consolidation. The most recent  Freedom House report rated as free the speech, media and press environment in Taiwan, on equal footing as Japan: the only other Asian Country able to achieve that result.

 

President Ma did also emphasize tolerance and dialogue, together with the protection assured by ROC Constitution to cultural diversity.

 

It is therefore a distinct honor for me, as a witness of a long standing effort undertaken by Italy in the field of human rights, to try connect some dots between the global security picture and the Rule of Law. These dots emphasize that human rights and the Rule of Law have universal and unique value  in crises management and conflict resolution.

 

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As it is well known, the Universal Declaration of Human Rights adopted on December 1948 is not binding. However it had and continues to have an enormous impact on the evolution of the International Law. The Convention not only inspired   three Covenants adopted in 1966  on Civil and Political Rights , on Economic, Social and Cultural Right, on the elimination of all forms of racial discrimination. The Convention also led to a specific recognition of those rights at the regional level, with the 1950 European Convention on Human Rights, the 1969 American Convention, the 1981 African Charter, the 1994 Arab Convention. In his Encyclica Pacem in Terris Pope John XXIII called the Universal Declaration “an approach toward the establishment of a juridical and political ordering of the world community…a solemn recognition of the personal dignity of every human being”.

 

The relationship between the protection of human rights and the Rule of Law has been increasingly recognized by the UNSC, the European Court of Human Rights, the European Court of Justice and by a growing number of national courts and Tribunals. These national jurisdictions are drawn into a process in which individuals, and not  States, claim to  hold rights granted by international norms.

 

The recent World Economic Forum in Davos as the Security Conference in Munich have highlighted the Global Risks our countries have to face at a time of profound and extremely rapid transformation.

 

Climate change accelerates. A new geopolitical context modifies established patterns of the international collaboration; economic fundamentals   sustain a more active Us role and influence in the world; Russia’s economic constraints  limit her ambitions; China is likely to pursue  her trajectory as an increasingly relevant global player; Europe’s regained economic growth may relaunch a political process which seemed lost over the last few years.

 

In the Global Risk landscape defined this year by the WEF interstate conflict have leaped up. At the same time, high risks remain for possible failure of climate change adaptation, water crises, unemployment, social instability, fiscal crises, failure of national governance, cyber-attacks, WMD, and large-scale terrorist attacks.

 

The Global Risks assessed in Davos are relevant to “human rights” and the “rule of law”. But perceptions may diverge considerably. Even in a rather homogeneous context, like the Europe one, different assessments can alter the sense of urgency for Government. A recent  poll on security in some EU countries showed for France at the highest place the fear of a radical Islam  – as it had to be expected after Charlie Hebdo events – followed by climate change, Ukraine, and Ebola. In the UK, the first concern was for armed conflict, before pandemics, climate change and nuclear proliferation. In Poland, Ukraine was the number one issue. The risk of terrorism did rank very high for the Spanish public. The economic situation was priority number one in Italy. For Germans, main priorities did rest on economic stability, quality of life and social issues.

 

Security considerations may have therefore different impact on national policies and their influence on promotion of Human Rights and the Rule of Law. The opportunities for enhancing global security through their promotion should therefore be considered in each regional context.

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  1. I) In Europe. Russian occupation and annexation of Crimea, last year, have plunged Europe security in its deepest crisis since the end of the Cold War. Many see in the Ukraine case a refinement of tactics already put in place by Moscow to regain influence across the territories of the former Ussr, challenging at the same time the “legal order” in existence since the Helsinki Final Act in 1975 and all subsequent agreements on European Security and Cooperation. The new scenario unfolding in Ukraine is therefore a striking example of how the unilateral use of force can breach a well established system founded on the Rule of Law among European States. Use of force and military mobilization in the proportion experienced in central and Eastern Europe can escalate easily. Even more so when we consider that neither confidence building measures, nor limitations of Conventional Forces (CFE), or verification of Intermediate nuclear forces are currently applied and implemented. Over the last summer many commemorations took place of the tragic outbreak of WWI. That shock did not come out of a blue sky. Historians agree that 1914 war could have been avoided until the last minute. As  Margaret MacMillan says in her book “The war that ended peace”, “the fact that earlier and serious crises among powers, over colonies or the Balkans, had been settled… that the threat of war had been used but in the end concessions had been made, and conferences had been summoned with success” made many to believe that” brinkmanship had paid off. Only this time brinkmanship did not work”.  In order to start rebuilding the European collapsed security architecture the root causes of what did happen last year should be fully understood.

 

Two questions have been intensely debated over the last months:

  1. whether the West- the EU and the US – started the Ukrainian crisis;
  2. whether Ukraine is poised to become a new, and huge, “frozen conflict”, as a part of an overall Russian strategy  challenging the  Western desire for stability through endless “zero sum games”.

 

* As Roger Cohen recently wrote for the NYT, the Russian annexation of Crimea – declared as illegal by the Un General Assembly and the reason for Western sanctions – tore up by forceful means the independence of a sovereign State in direct violation of article 2 of the UN Charter. Equally violated were the formal commitments under the 1990 European Charter, and the 1994 Budapest Memorandum, when Kiev was convinced to give up 1800 nuclear warheads in exchange for the security guarantees and  respect of its  territorial integrity.

Again at the latest Munich Security Conference Foreign Minister Lavrov, following a well known script, accused Kiev of nationalistic violence, the Us of insatiable desire for global dominance, and the EU of meddling into Ukrainian domestic affairs, turning its back to the prospect of a free economic zone from Lisbon to Vladivostock.

 

The truth is that Maidan demonstrations led to the ousting of President Janukovyč after the massacre of more than hundred people by security units under his orders. The alleged “coup” was a popular revolt against a leader corrupt and prone to Moscow pressures. Was Maidan the first case of a rebellion against such a corrupt President? Clearly not, and hopefully not the last.

Intense “four party talks” (Porošenko, Putin, Merkel, Hollande) have been unfolding since the short-lived agreement last September. As President Obama stated after he met with Chancellor Merkel in Washington “It’ is clear that they violated just every commitment they made in Minsk. Instead of withdrawing from eastern Ukraine, Russian forces continue to operate there, training separatist and helping coordinate attacks. Instead of withdrawing its arms, Russia has sent in more tanks and armoured personnel carriers and heavy artillery”. The Us President is the certainly not a “warmonger”. He has been frequently criticized for his reluctance to engage the Us in military operations even when others do with enormous damage for peace, regional security and loss of lives. His insistence on dialogue and diplomacy for the Syrian crisis, the Iranian nuclear threat, the Middle East peace process, is unabated. The same effort the American and European Goverments are reserving to Ukraine and to a needed improvement of their overall relation with the Kremlin.

 

** The urgent need of restoring an European Security framework based on the Rule of Law applies to the solution which must be found not only for the Ukrainian crisis, but also for the other “frozen conflicts ” in Transnistria, South Ossetia, Abkhazia, and Nagorno Karabakh. Dozens of UNSC resolutions and EU Agreements and statements have stressed the fundamental principle of the territorial integrity, sovereignty and independence for Moldova, Georgia and Azerbaijan, in spite of the splinter decisions by Transnistria, Abkhazia, South Ossetia and Nagorno-Karabakh to head for independence.

 

The lukewarm response given by the international Community to South Ossetia and Abkhazia proclaimed independence in 2008, limited only to Russia, Nicaragua, Venezuela and Nauru, has proven that the right to self determination can only be recognized under very specific conditions, as defined by the international Law.

 

The situation emerged with the break-away entities in the Caucasus and in Moldova must be thoroughly reassessed.

 

As far as Nagorno-Karabakh is concerned, we may recall that the conflict ended with a cease fire in 1993 after a six year confrontation between Armenia and Azerbaijan. Recently it flared up again. Skirmishes along the separation line have killed dozen of troops over the last few months, and are worsening. Without successful mediation renewed tensions will further destabilize the Southern Caucasus and disrupt Azeri gas export to Europe, harming the western interest of differentiating the gas suppliers of the European market.

The overall European security requires therefore a huge effort of political will also in the Caucasus.

 

The “acquis communautaire”, that is to say the wealth of norms and practices which have governed inter State relations in Europe since WWII, are presently in the most urgent need of a repair, consistent with the Rule of Law.

 

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  1. II) The opportunities for enhancing global security through Human Rights and the Rule of Law should be considered also for the “Great Sea”, as the Mediterranean was called in ancient times.

 

The seeds of instability affecting Europe, North Africa, and Middle East are mostly planted in the “Great Mediterranean”: the wide geopolitical reality stretching from Gibraltar to Mesopotamia and the Gulf.

 

Iraq, Syria and Libya, three countries of a key importance for the European security and economy, can be almost considered as “failed states”. Three countries with more than 62 million people, with huge natural and human resources, very young populations, are positioned at crossroads critical for the Middle East, North Africa and Europe. Their sectarian strife is spilling over unstable regions and, in a way European Countries.

 

Hundreds of thousand of migrants from Syria, Iraq and Libya land on European shores; Sunni militants of the Islamic State represent a direct threat for the entire Middle East and even for us; the Shia-Sunni clash intensifies; intra Sunni divisions multiply; horrible violence and persecution of Christians, Yazd’s and Kurds add to  an already bleak picture.

 

Gaza has flared up three times since 2008, but no substantive negotiation towards a “Two States solution” is currently alive even if the Us and the EU, like many Israelis believe that the status quo is untenable.

 

Against this bleak picture, the historic struggle between Sunnis and Shias in Syria, Lebanon, Iraq, Yemen and the Gulf represents by far the major concern since it interacts with other critical factors: power sharing arrangements in Lebanon; the Iranian regional role and its nuclear program; the relations among the six members of the Gulf Cooperation Council.

 

The long wave of the Sunni- Shia struggle reaches Egypt, Libya, Algeria, Somalia, Kenya, Mali, Nigeria, and everywhere else fundamentalist organizations exploit to their own advantage each point scored by their associates in other parts of the Muslim world.

 

A fair reading of current events should first of all connect the present situation to the fall of Saddam Hussein and of Iraqi institutional structure. That gave way to the sudden empowerment of Iran as regional kingmaker and uncontested Shia leader.

 

“The conflict now unfolding- as Henry Kissinger notes in his World Order- is both religious and geopolitical. There is a block lead by Shia Iran witch backs Bashar Al Assad portion of Syria Nuri Al Maliki’s central and southern Iraq, Hezbollah militias in Lebanon and Hamas in Gaza and there in a Sunni blog consisting of Saudi Arabia, the gulf states and to some extent Egypt and Turkey. Iran aims for regional dominance by employing non state actors tied to Tehran ideologically.”

 

In the spring 2013 Ayatollah Khamenei addressed a conference of Muslim clerics and gave the Arab Spring a new twist by calling it “Arab Awakening”: “the world of Islam, said Khamenei, has now emerged out of the side-lines of the social and political equation, opening the door to a global religious revolution”. It is important to understand that the unity of Islam that Ayatollah Khamenei, was advocating, as before him did Ayatollah Khomeyni, should take place under the sole banner of Shia, with the coming of the Mahdi returned from “occultation” to assume all is powers and to “ fill the world with justice and beauty”.

Iran synthesizes complex legacies driven by internal dynamics, by an ultra millenary and diverse culture; by a whole century of dramatics shifts in the country struggles between its Persian soul and it’s theocratic allegiance. Contemporary Iran seems decided to be a cause before being a country. A cause for expanding the pre-eminence of Shia forces regionally and globally. The Iranians are seeing their strategic landscape as one developing in favor of a revolutionary course: in the region with the destabilization of the Sunni monarchies opposed to Teheran; worldwide, as a revolution against Westphalian order and western influence.

How could the Ayatollahs take the risk of losing the Shia-Alawite minority Government in Syria? How could they give ground to reformist movements? How could Khamenei allow a real pluralism to take place in Damascus and in Baghdad, encouraging government participation for the Sunni majority in Syria, and to the Sunni minority in Iraq?

 

As we all know, Iran doesn’t want to take any risk in Syria or elsewhere. An expeditionary corps of Hezbollah, led by IRGC officers was send early into the fight to support Assad. Iran engaged in a full scope diplomacy, helped by Russia and to a lesser extent by China exploiting hesitance and lack of strategies by western Countries.

 

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When Samuel Huntington wrote in the early ’90s “The clash of Civilizations” the common wisdom was that cultural, religious and ethnic fractures between the “West and the Rest”, between Christians and Muslims, Buddhist and Communist, were much deeper THAN the fractures WITHIN the Muslim world itself: much deeper THAN the divide between Sunnis and Shias, between the secular and the religious forces of the political Islam.

 

Although al Qaeda and the plethora of Jihadist groups have never ceased to threaten both the Muslim world and our societies, many fear that a worrisome, millenary “clash” will re-emerge today. The so cold “Islamic civil wars”, hundreds of years before the Crusaders, did mark the age of the four Caliphs, the massacre of Karbala, the killing of al-Husayn ibn Ali. The memories of that age still resound in the incitements of the mullahs and Imams, and keep alive doctrinarian and sectarian divisions been nurtured for centuries.

 

Over the two past years, starting with the 2013 United Nations General Assembly and the telephone call between Presidents Obama and Rouhani, the US has been trying to engineer an acceptable way to bring in Iran from the cold, and to transform the region by elevating Iranian influence in a constructive, non-confrontational fashion. The Obama Administration has been led by popular mood until last August. The opinion polls did show until then a clear reluctance of Americans to engage armed forces abroad.

More recently, the gruesome images of hostages being beheaded and burned alive have completely reversed the trend. Even if some of the weariness about sending booths on the ground remains, Washington has been transformed from the capital of a reluctant super power in to the leader, with strong congressional support, for recommitting the US military into another conflict against global terrorism.

The main question still lays on the overall approach to Iran. Has the regime changed its basic posture since Rouhani election? Is the nuclear agreement considered in Washington and in Brussels a sufficient evidence that Teheran will became a constructive partner in the other most difficult regional issues?

 

The US Administration still hopes that a working relationship with Iran means sway over the action Assad and Hezbollah, and facilitate a decent outcome in Iraq.

 

While coalescing the Sunni Arab states against the “cancer” spread by the Islamic State in the Sunni world this strategy still has to be clarified:

– first, there is a need to sanitize western and Arab military attacks against the Islamic State from any cooperation with Assad;

– second, it is all but evident how the war against the Islamic State will benefit western and Sunni Arab security interests instead of further empowering of Iran and Shia factions;

– third, lukewarm reactions of the Sunni Arab public show that this strategy is not gaining the hearts and minds of the population where the conflict between Sunni and Shia is more acute. Quite the contrary, if we look at the very dangerous spreading of ISIS to Libya, Nigeria and elsewhere.

If the birth of the “Islamic State” in Syria has been encouraged by the absence of timely initiatives by Western and Arab countries, ISIS is coming of age in Iraq after years of atrocities and sectarian behavior by the Maliki Government; in Syria, after 250.000 victims of Assad massacres, in observance of policies requested  by Iran.

 

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A re-designed diplomatic strategy should lead to a cessation of the proxy war across the Middle East between Syria, Iran and Sunni Saudi Arabia. The rivalry for hegemony initiated by the Iranian revolution would have to conclude the sectarism that has rebounded with the eruption of ISIS, a deadly threat to Arabs, Iranians and the whole world.

Putting Iraq, Syria, Libya or Yemen back together, is an enormous task. Ways must be found to transform fragmentation into a devolution of power respectful of the Rule of Law, within agreed “national compacts”, to preserve “unitary“ and not “uniform“ States.

 

Iraq will survive as a State only if Teheran and its Shia proxies allow Sunnis and Kurds to gain real influence in the is own country.

In order to get rid of Isis the Sunni tribes and the former Ba’athist groups must be convinced that people in Baghdad are trustworthy and not enemies. That is extremely difficult. Over the last six years Sunnis have only gone trough total disillusionment and disenfranchisement. After having fought hard in 2007 and 2008 Al Qaeda and other terrorist organizations, the Sunni tribes have again been terrorized and pressured. The prerogatives granted to them by the Constitution have been systematically overlooked.

It will be equally difficult for them to repeat for a second time the “Awakening” against terrorist groups, without knowing for sure that the Sunni’s can be masters of their own destiny. The same goes for the Kurds.

The EU-US military involvement in protecting the Kurd Regional Government from the IS, needs to be matched with a firm understanding with Iran on two points:

– that the Iraqi Constitution must be fully implemented;

– the era of one party-Shia domination is over.

 

It would be a mistake to believe that the military eradication of the IS could, by itself, mitigate the Iranian appetite and wipe away the roots of the Sunni Shia divide.

An effective strategy needs to align local population against the ISIS.

 

A- That means in Iraq a radical switch from the current Shia rule to an implementation of the Rule of Law with: a new unity Government which empowers at the national level Sunnis an Kurds; a decentralized power structure; a distribution of large portions of national budget to Sunni-majority areas; economic assistance and subsidies to local Sunni communities that feel now attracted by the IS.

 

According to some views, a loose Iraqi Federation could be a decent a compromise. On the other hand if they have to remain united the different factions should be given strong incentives, in term of power sharing, equitable access to common resources and revenues, security guarantees. The formula enshrined in the 2005 Constitution was one based on federalism, Government decentralization to the regions, and limited role for a central Authority tasked essentially with defense, foreign affairs and equitable distribution of wealth. Implementation of the Constitution is a test case for the Rule of Law in a Country whose stability, security, and existence are threatened by constant violations of Human Rights and fundamental freedoms.

 

Al-Maliki efforts have gone in the opposite direction. He has constantly challenged decentralization, he has sought absolute power for Shia factions, he has favoured only the Iranian regional objectives.

 

B- The Us and the EU should engage with a new Iraqi government on a very different level then before, when Al Maliki double games, ambiguities and complete dependence from Teheran led to disaster. Security arrangements, political inclusiveness, respect of previous commitments- human rights come fully into the picture- must be the “lode star”, if western Countries effort in Iraq has any sense. A shared strategy with the new Government should aim at key priorities: to contain and possibly reverse the Islamic State expansion in Iraq and consequently in Syria: to dry up its financial resources; to displace the IS from oil wells in northern Iraq and impede refinement at facilities in Eastern Syria. Similar patterns should apply to an overdue, urgent engagement of Western and Arab Countries in Libya. Derna, Sirte and even Tripoli and Misurata, are quickly becoming a new epicenter of global Jihad.

 

C- The new Iraqi government should also commit to go off on a fresh tack in its relations with the Assad regime. Western support shouldn’t be granted in absence of this key step. It would be wise for the EU to seriously address this issue, the sooner the better. Al Maliki involved Baghdad in the Syrian civil war sitting side by side with Assad, channeling Iranian military aid, and making Iraq an even more obvious field of operations for Isis.

 

To go off on a fresh tack implies also a very different Iraqi approach towards Turkey, Jordan and the Syrian Kurds: not only in terms of control of oil wells and refineries, but also with a broader view of government decentralization and local security structures.

 

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The Iraq case epitomizes a  Rule of Law failure impacting on  regional security. In several respects, it incarnates the cumulative failures of the Arab Awakening; when the fragmented Arab world seemed suddenly unified, bringing to the fore  a quest for democracy, justice, human rights and political reforms.

 

As  former Jordanian FM, Marwan Muasher put it, “Now the hard part begins.. The Arab world needs to develop truly pluralistic systems in which all political forces, including Islamist ones, can operate, but none can monopolize power”. More equitable economic models, together with education promoting tolerance, respect of cultures and religious diversities, should complement the Arab transition.

 

Contrary to the “clash of civilizations” theory between the West and the Rest, it is substantially untrue that Arab people don’t appreciate liberal democracy and Western style freedoms.

 

Egyptians, Tunisians and Moroccans were asked by Gallup in 2012, as constantly done since 2005 when Mubarak and Bel Ali were still in power, if they agreed with proposals to enshrine in new Constitutions “freedom of speech” and “freedom of religion”.

 

On freedom of speech the “yes” was overwhelming: 94% of Egyptians, 95% of Tunisians, 75% of Moroccans said they were in favour. Along similar lines were  the answers on  religious freedom: 70% for Egyptians, 84% for Tunisians, 49% for Moroccans.

On two other issues, equality between men and women, and Sharia as source of legislation, results were the following:

-in Egypt 79% of men and 86% of women were in favour of equality;

-in Tunisia,59% of men and 87% of women;

-in Morocco,72% of men and 89%of women.

While supporting clearly these freedoms, the Gallup poll showed a significant favour for Sharia as a source of legislation, with 47% and 46% in Egypt declaring Sharia as the only source, or one of the sources of legislation; 17% and 58% in Tunisia; 37% and 31% in Morocco.

 

Although the Islamic State atrocious violence undermines  regional security and the Rule of Law in important Mediterranean and Middle Eastern Countries, major forces in the Arab world remain committed to a civil, democratic States.

 

Let me recall a document drafted by Al-Azhar, the oldest and most respected institution of Islamic learning in the Arab world. Released in June 2011, it was a semi-constitutional declaration committing all the major forces in the country to a civil, democratic state. Its principles largely align with those of a modern democratic state.

First: a constitution should establish rules, guarantee the rights and the duties of all the citizens equally and give the legislative power to the people’s representatives in accordance with the true Islamic principles.

Second: democracy should be based on free and direct voting this represents the modern formula to achieve the Islamic precepts of Shura (consultation). Islamic precepts should include pluralism and rotation of power.

Third: commitment to freedom of thought and opinions with full respect of human, women and children’s rights, pluralism, full respect of religions.

Fourth: respect of counter opinions and dialogue.

Fifth: commitment to implement all international conventions and resolutions.

The Al-Azahr principles, reiterated in more recent statements and declarations remain, in my opinion an important evidence and credit for the acceptance of the Universal Declaration of Human Rights in the Muslim world.

 

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III)  The opportunities for enhancing global security through Human Rights and the Rule of Law should be considered also for the East Asia.

 

It may have been  hasty and not completely accurate to say,  last August, that “China was feeling the heat” of a mounting regional antagonism.

 

In fact, conciliatory Chinese gesture were limited to the withdrawal ahead of schedule of a massive oil rig from an area also claimed by Vietnam; while other activities in disputed waters did not stop: new lighthouses, artificial islands, and rejection of a moratorium on construction activities. However, we should recall that since 2002 China and Asean members had been committed to a binding “code of conduct” to reduce the risk of conflict at sea.

 

In 2011 China and Asean agreed on guidelines to implement the “code of conduct”,  but its interpretation still is all but easy.

A four point deal to reduce bilateral tensions was reached with Japan last summer. Chinese patrols around the Senkaku/Diaoyu Islands decreased considerably,  making the pattern more predictable and reducing the chance of clashes. South and East China Seas have been relatively calm since President Xi Jinping met Prime Minister Abe and President Obama at the Asia-Pacific Co-operation summit last November. Tensions with Japan over disputed islands lowered. President Xi had a “meeting of minds” over maritime matters with his Filipino counterpart. Beijing and Seoul concluded a trade deal. The US and China accomplished some real progress on climate change, visas, trade and security.

 

The Us-China climate agreement did prove that a common political and legal ground can exist between the two largest world economies while they recognize their unique responsibilities for drastic reductions of emissions.

 

In security matters a closer cooperation remains overdue. There were, undoubtedly, welcome developments  last autumn: re-activation of the bilateral Security Strategic Dialogue (SSD), which was on hold since May 2011; “consultation mechanism” on cybersecurity with Seoul and Tokyo; discrete initiatives on common concerns among Asian and Western capitals for North Korea cyber and nuclear threats .

 

Still ambivalences and misperceptions associate China with other BRICs “revisionist power” of a well established Legal Order in international affairs.

 

China “revisionist” attitude – that taken to is extreme consequence, could affect even the “pacta sunt servanda” principle – may have on the internationally established Rule of Law,  profoundly different and heavier impact than – let’s say – the Russian revisionism against the whole European security architecture,  or the Iranian- Shia revisionism against  political pluralism and security arrangements in Middle East.

 

No doubt that emerging economies deserve a bigger role in international financial institutions. The EU and other major stakeholders have been  supporting this venue for a long time. It is only unfortunate that the Us Congress has blocked an overall IMF reform, encouraging BRICs alternative options, separate  trade deals and Development Banks.

 

Instead of entrenching in economic rivalries all the Pacific Powers should engage in reinforcing and reforming, not in weakening the global order. Countries having a “market economy status”, governed by the Rule of Law,  command by far the largest share of world’s GDP. Enhancing the opportunities offered by the TTP, TTIP, and other free trade and market integration agreements,  based on the Rule of Law,  protection of foreign investments,  labour standard, human dignity, scientific progress, should be felt as the highest priority for our public opinions and our Governments.

 

  1. B) There is another, equally important aspect to consider as far as the  Rule of Law is concerned: the domestic implementation of the Rule of Law in the People’s Republic of China.

 

On October 23th last year the Communist Party Central Committee adopted a landmark Resolution. It was the first time in its history that the Chinese Communist Party had decided to give a very central place to the Constitution and to the Rule of Law, defining it at such in the official English translation. Two aspects of that lengthy Resolution were especially emphasized:

 

  1. The Communist Party deliberated that the Constitution would be promoted throughout society, as fundamental guideline for all including party members and armed forces. It was rather surprising to many that President Xi Jinping and the Plenum had taken this line, after discouraging and even deterring intellectuals, academics and media from promoting the Constitution as a way of checking the Party’s dominance in Chinese life.

And “Constitutionalism” as a possible recognition of Western values was frequently stigmatized by the Authorities.

 

  1. By declaring December 4th as the National Constitution Day, and by making better use of amendments introduced ten years ago in the Constitution to protect human rights and private property provides  Xi Jinping anticorruption campaign against both “tigers and flies” with an additional and perhaps decisive weapon. Nobody could be any more above the law when dealing with individual properties, or with legal cases. From now on, as the Resolution signifies, Judges will bear a full responsibility for their decision; new courts will be instituted to dilute the influence of local party officials.

 

If – and that’s a big “if”- the institutional landscape in the People’s Republic of China would  change for the better, if  Constitutional rights would be seriously and universally implemented in the Country before and above any  Communist Party convenience, that will be a great day for Asia. And there should be at that point no reason to further argue whether Rule of Law, balance of power, human rights, dignity and freedom of individuals, are values belonging to Western Countries, Asian cultures, or to the whole Humanity. Global security would be enormously enhanced.

 

In conclusion, we must recognize that the universality of the Rule of Law  and its close relation with global security is matter of intense debate: around two main  visions, well summarized in my opinion by Martin Jacques in “When China rules the world”, on one side; and by Jack Donnelly in “Universal Human Rights”, on the other.

 

 

According to the first approach, culture and history explain how much the nature of political power differs in European, American and East Asian societies. Western democracies and values should not be considered as having universal relevance.

 

People in Europe and in North America “are driven by the quest of individual autonomy and identity… at the center of East Asian culture is the desire for group identity. A person finds affirmation and recognition not in his own individual identity but in being part of a group. Western governance rests instead on the notion of utility.” Governments must assure education, health, welfare, security for all citizens, and must guarantee justice, equal rights and freedom. In Western history the exercise of power has been limited through checks and balances, accountability of Governments towards their citizens. “Historically – according to Martin Jacques- the function of government in East Asia has been more opaque, with – in contrast to the West – a separation between the concepts of power and responsibility; it was believed that there were limits to what a government could achieve, that other forces largely beyond human control determined outcomes.

 

Rather than being based on utility, power was seen as an end value in itself, bound up with the collective well-being of society. Government had an essentially paternalistic role and the people saw themselves in a relationship of dependency.

 

Confucian rule was based on the idea of an ethical order. Political hierarchy presumed and required an ascending ladder of virtue on the part of the office-holders Both society and government were based on the family, with two characteristic: filial piety, transcendental belief in ancestral spirits”.

 

The sense of belonging, of being part to a Nation, of sharing a common linguistic and cultural identity, anchored on the knowledge of a unique tradition, and the will to   share a common destiny was well defined by intellectuals like Ernest Renan in the late 19th Century in France, as in other Western countries. Still, those who reckon that Asian values differ “genetically”, at origin, from Western values, underline the strong patriotism which characterizes East Asia societies ” the power of identity, the rejection of outsiders and the strength of native racism”. All this being “primarily a consequence of the nature of the indigenous process of socialization”.

 

Chinese re-discovery of  the “Rule of Law”, is interpreted more as a way of adapting Confucian ideas to a  democratic process in China,  than a clear evidence that  universal values will be properly recognized in the Chinese society.

 

Morality, ethics of rulers, peaceful resolution of conflicts, solidarity among citizens, are certainly  values which are common  to western and eastern cultures, however different could be their roots in the respective societies.

 

It would be extremely difficult to assess how much so many religions, thinkers, believers “owe” to each other. Since Marco Polo and Father Matteo Ricci voyages to Middle Empire (Middle Kingdom), Europe was influenced and fascinated  by China. In some ways that happened also in the other direction: I just think of Karl Marx, Leon Trotski, Lenin and the adaptation of their teaching for Mao’s China.

 

The universality  of the Rule of Law  and human rights neither does  require that they were universal in creation, nor does it imply that they were the exclusive invention of mighty and powerful States.

 

Jack Donnelly, in his book “Universal Human Rights in theory and in practice”, notes that conceptions of security and sovereignity have been changing since 1975 Helsinki Final Act. That Agreement was signed  primarily to ratify the European borders and to recognise States sovereignty as established by WWII. However, human rights  were for the first time addressed in a major security agreement between superpowers and treated as a fundamental security issue. An approach which became deeply entrenched in all subsequent UN deliberations. The six leading human rights treaties had an average of 172 parties in 2012. A 88% ratification rate is strikingly high in contemporary world. Even more notable, as Jack Donnelly writes, is “the penetration of human rights into bilateral, multilateral, transnational diplomacy, and these rights have become standard subject”. China, where in the 1980’s the very use of the term “human rights” could land people in jail, is adopting that language and undersigned most of the human rights related UN documents.

 

With reference to the debate concerning Chinese engagement with human rights and Rule of Law, Donnelly observes that Chinese “came” to Western ideas of rights, largely as a result of their dissatisfaction with the suffering of their country at the hands of Western powers. Rights to freedom of thought, speech and publication, were to be used to make China strong and dignified again in the international arena.

 

Because Asian values are not frozen in an ancient past, they are no less dynamic than Western values or ideas from anywhere else in a globalized reality.

 

In this sense, a constant engagement in promoting  Human Rights and the Rule of Law as indispensable playfield for security will remain the fundamental task for global diplomacy.

 

 

 

©2022 Giulio Terzi

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