China’s adherence to the rules-based international system is selective, prioritizing certain rules in favour of others. States supportive of that ‘system’ – or, as some argue, systems[1] – should identify areas of mutual strategic interest so that they can draw China further into the global rules-based order and leverage China as a constructive player that potentially also contributes to improvements in such areas. This is particularly apposite at a time when the US is in retreat from multilateralism and Russia seems bent on disrupting the rules-based international order.

Supportive player

There are many reasons for actively engaging with China on mutual areas of interest. China is a committed multilateralist in many areas, recognizing that often international cooperation and frameworks hold the key to its domestic problems, for example in the fields of environmental sustainability and financial regulation.

China’s economic power is valuable in upholding international institutions: China is the UN’s third-largest donor (after the US and Japan) at a time when the UN is facing budgetary shortfalls. China is also the second-highest contributor to the UN peacekeeping budget, and the largest contributor of peacekeeping forces among the five permanent members of the UN Security Council.

China also has a valuable role to play in the settlement of international disputes over trade and investment. China is a big supporter of the World Trade Organization (WTO)’s dispute settlement mechanism, and one of its most active participants;[2] China is currently playing an active role in negotiations to save the WTO’s appellate mechanism from folding in the wake of the US’s refusal to nominate new judges.

The last 15 years have also seen a major shift in Chinese attitudes to investment arbitration, from a general suspicion and limitation of arbitration rights to broad acceptance and incorporation of such rights in China’s trade and investment treaties. China is actively engaged in multilateral negotiations through the UN Commission on International Trade Law (UNCITRAL) on reforms to investor–state dispute settlement.

China has shown leadership on global climate change diplomacy, urging nations to remain committed to the Paris Agreement in the wake of the US decision to pull out, and has been an important interlocutor with the UK and the EU on these issues. As a strong supporter of the Paris Agreement, but also as the world’s top emitter of carbon dioxide, China has a crucial role to play in pushing forward implementation of the Paris targets. Despite its high emissions, China remains one of the few major economies on track to meet its targets,[3] giving it greater leverage to peer review other parties’ efforts.

A recent report by the UK parliament’s Foreign Affairs Committee (FAC), on China and the rules-based international order, noted that where a body of trust and goodwill is developed with China, there is the possibility of discovering interests that coincide and the ability to work together on issues mutually regarded as of global importance. The report refers to a number of success stories from UK partnership with China in multilateral forums, including in counterproliferation and global health.[4]

Developing areas of global governance

As well as working with the current system, China is increasingly involved in the shaping of newer areas of international law – whether it be submissions to the International Tribunal for the Law of the Sea (ITLOS) on procedural rules for the emerging deep-sea mining regime or pitching for a greater role in Arctic governance.[5]

This enthusiasm should be harnessed to promote the international rule of law, but at the same time there needs to be recognition of the strategic goals that drive China’s engagement. China’s interest in the Arctic, while including the desire to protect its ecology and environment, is also about access to marine resources, as well as about the Arctic’s strategic potential for China’s military.

China’s submissions to ITLOS on the rules of procedure for deep-sea mining are constructive, but also reflect an ambition to secure first-mover advantage when commercial mining eventually takes place. Like other major powers working in this policy area, China’s actions are guided by self-interest, but that doesn’t mean its goals can’t be pursued through multilateral rules.

China is also interested in creating new international structures and instruments that further its strategic aims. For example, with Russia (through the Shanghai Cooperation Organisation) it has proposed an International Code of Conduct for Information Security in the UN.[6]

China is also pondering an array of options for dispute-resolution mechanisms for its Belt and Road projects, including the possibility of an Asian version of the international Convention on the Settlement of Investment Disputes, which might sit under the auspices of the Asian Infrastructure Investment Bank (AIIB).[7]

The creation of new instruments and institutions need not be a threat to the rules-based international order in itself. We have already seen a combination of the creation of parallel complementary regimes alongside the reform of existing institutions, for example in development financing through the AIIB or the New Development Bank (often referred to as the ‘BRICS Bank’); these two banks are relatively conventionally structured along the lines of Western-dominated institutions, albeit with greater Chinese control. Based on these examples, selective adaptation seems more likely than a hostile ‘Eastphalian’ takeover.[8]

Risks

There is, however, a real risk that in certain areas China may promote a rival authoritarian model of governance, assisted by an opportunistic convergence with Russia on issues such as human rights, development and internet governance. In areas where China’s core interests clash with those of the rules-based international order, China has shown itself to be unbending, as in its refusal to abide by the July 2016 decision of the Permanent Court of Arbitration in its dispute with the Philippines over the South China Sea.[9]

China is becoming more assertive at the UN, but while it seeks to project itself there as a responsible emerging global leader, it is promoting a vision that weakens international norms of human rights, transparency and accountability,[10] while also carrying out practices domestically that raise serious human rights concerns (not least the detention of hundreds of thousands of Uighurs in re-education camps in Xinjiang).[11]

China’s increased dominance geographically and geopolitically through its Belt and Road infrastructure projects carries with it a number of social and economic risks, including smaller states becoming trapped in unsustainable financial debts to China.

But at a recent Chatham House conference on Asia and international law, participants highlighted the limitations on how far China can shape an alternative governance model.[12] China currently lacks soft power, cultural power and language power, all of which are needed in order to embed an alternative model abroad. China also currently lacks capacity and confidence to build coalitions with other states in the UN.

Where it has tried to get buy-in from the international community for its new institutions, such as the China International Commercial Court (CICC) announced in July 2018, there has been scepticism about the standards to be applied.[13] Unless the court can demonstrate sufficient due process, international parties are likely to prefer other centres with a strong reputation for upholding the rule of law, such as those in London, Dubai and Singapore.

Where China does promote its own governance model at the expense of the rules-based international order, states are starting to push back, often in concert. EU member states so far have adopted a joined-up approach to the Belt and Road Initiative. With the exception of Italy, they have refused to sign a Memorandum of Understanding on participation unless China provides much greater transparency on its compliance with international standards.

The EU also recently presented a coordinated response to China on the situation in Xinjiang.[14] Similarly, members of the so-called ‘Five Eyes’ intelligence-sharing alliance (comprising Australia, Canada, New Zealand, the UK and the US) have acted together in relation to certain incidents of cyber interference attributed to China.[15]

There are also signs of pushback from smaller states closer to home in relation to challenges to national sovereignty, debt diplomacy and financial viability arising from Belt and Road projects. The Sri Lankan government recently reversed the award of a $300 million housing deal to China, instead opting for a joint venture with an Indian company.

China has been downscaling its investments as a way to counter some of the backlash it has received: the most recent Belt and Road summit put forward a more modest set of aspirations. This suggests that there is some scope for states to stand up to China and use leverage to secure better deals.

Many international institutions have been Western-dominated for years;[16] China, together with many emerging and middle powers, has felt for some time that the international architecture does not reflect the world we live in. Given that context, states that champion the rules-based international order should acknowledge China’s desire to update the international order to reflect greater multipolarity, globalization and technological change, while being clear-eyed about their engagement with China. This involves investing in a proper understanding of China and how it works.[17]

Where possible, cooperation with China should lead to outcomes that are backed up by international standards and transparency. The above-mentioned FAC report cites evidence that the UK’s support, and that of other developed countries, had a positive impact in shaping the governance and standards of the AIIB.[18] China has brought in international experts to advise on disputes before the CIIC, which may reassure would-be litigants.

China’s relationship with the rules-based international order needs to be assessed pragmatically and dynamically. China can be a valuable partner in many areas where its objectives are closely aligned with those of the international community – from trade to climate change to peacekeeping.

But where the country’s core interests are at odds with those of the wider international community, an increasingly confident China will strongly resist pressure, including on the South China Sea and human rights. In these areas, states supportive of international law can most powerfully push back through alliances and by ensuring that their own core values are not compromised in the interests of economic benefits.

Notes

[1] Chalmers, M. (2019), Which Rules? Why There is No Single ‘Rules-Based International System’, RUSI Occasional Paper, April 2019, London: Royal United Services Institute, https://rusi.org/occasional-papers/Which-Rules-Why-There-Is-No-Single-Rules-Based-International-System.

[2] See, for example, Moynihan, H. (2017), China’s Evolving Approach to International Dispute Settlement, Briefing, London: Royal Institute of International Affairs, https://www.chathamhouse.org/publication/chinas-evolving-approach-international-dispute-settlement.

[3] UN Environment (2018), Emissions Gap Report 2018, p. XVII, https://www.unenvironment.org/resources/emissions-gap-report-2018.

[4] House of Commons Foreign Affairs Committee (2019), China and the Rules-Based International System: Sixteenth Report of Session 2017–19, p. 32, https://publications.parliament.uk/pa/cm201719/cmselect/cmfaff/612/612.pdf.

[5] Moynihan, H. (2018), ‘China Expands Its Global Governance Ambitions in the Arctic’, Expert Comment, 15 October 2018, https://www.chathamhouse.org/expert/comment/china-expands-its-global-governance-ambitions-arctic.

[6] Updated version proposed 9 January 2015.

[7] Moynihan, H. (2018), ‘Exploring Public International Law Issues with Chinese Scholars – Part Four’, Meeting Summary, 3 June 2018, https://www.chathamhouse.org/publication/exploring-public-international-law-issues-chinese-scholars-part-four.

[8] Chatham House (2019, forthcoming, ‘Security and Prosperity in the Asia-Pacific: The Role of International Law’, conference summary, https://www.chathamhouse.org/event/security-and-prosperity-asia-pacific-role-international-law.

[9] Permanent Court of Arbitration Case No. 2013-19 (Philippines v China), Award of 12 July 2016, https://pca-cpa.org/wp-content/uploads/sites/6/2016/07/PH-CN-20160712-Award.pdf.

[10] Piccone, T. (2018), China’s Long Game on Human Rights at the United Nations, Washington, DC: Brookings Institution, https://www.brookings.edu/wp-content/uploads/2018/09/FP_20181009_china_human_rights.pdf.

[11] Wye, R. (2018), ‘‘The entire Uyghur population is seemingly being treated as suspect’: China’s persecution of its Muslim minority’, LSE Religion and Global Society blog, 18 September 2018, https://blogs.lse.ac.uk/religionglobalsociety/2018/09/the-entire-uyghur-population-is-seemingly-being-treated-as-suspect-chinas-persecution-of-its-muslim-minority/.

[12] Chatham House (2019, forthcoming, ‘Security and Prosperity in the Asia-Pacific: The Role of International Law’.

[13] Walters, M. (2018), ‘Jury is out over China’s new commercial court, say lawyers’, Law Society Gazette, 1 November 2018, https://www.lawgazette.co.uk/law/jury-is-out-over-chinas-new-commercial-court-say-lawyers/5068125.article.

[14] The Economist (2019), ‘Hope remains for Western solidarity. Look at embassies in Beijing’, 17 April 2019, https://www.economist.com/china/2019/04/20/hope-remains-for-western-solidarity-look-at-embassies-in-beijing.

[15] In December 2018, the Five Eyes attributed the activities of a Chinese cyber espionage group targeting intellectual property and sensitive commercial property to China’s Ministry of State Security.

[16] Roberts, A. (2017), Is International Law International?, Oxford: Oxford University Press.

[17] Parton, C. (2019), China–UK Relations: Where to Draw the Border Between Influence and Interference?, RUSI Occasional Paper, February 2019, London: Royal United Services Institute, p. 30, https://rusi.org/publication/occasional-papers/china-uk-relations-where-draw-border-between-influence-and.

[18] House of Commons Foreign Affairs Committee (2019), China and the Rules-Based International System, p. 15.

This essay was produced for the 2019 edition of Chatham House Expert Perspectives – our annual survey of risks and opportunities in global affairs – in which our researchers identify areas where the current sets of rules, institutions and mechanisms for peaceful international cooperation are falling short, and present ideas for reform and modernization.

With international trade discourse taking an increasingly transactional and sometimes belligerent tone, it would be easy to overlook the quiet revolution currently under way to bring new voices into trade policy development and monitoring. The traditional division of responsibilities between the executive and legislature – whereby treaties are negotiated and signed by the executive, and the legislature does what is necessary to implement them – may be undergoing some change.

Growing awareness of the implications of trade and investment treaties for many aspects of day-to-day life – food standards, employment opportunities, environmental quality, availability of medicines and data protection, just to name a few – is fuelling demands by people and businesses for more of a say in the way these rules are formulated and developed.

Various options for enhancing public and parliamentary scrutiny of trading proposals have recently been examined by two UK parliamentary select committees.[1] The reason for this interest is obviously Brexit, which has presented UK civil servants and parliamentarians with the unusual (some would say exciting) opportunity to design an approval and scrutiny process for trade agreements from scratch.

Doubtless, EU authorization, liaison and approval procedures (which include a scrutinizing role for the European Parliament) will be influential,[2] as will the European Commission’s experience with stakeholder engagement on trade issues.[3] The recommendations of both UK select committees to include human rights impact assessment processes as part of pre-negotiation preparations[4] echo calls from UN agencies and NGOs for more rigorous and timely analysis of the human rights risks that may be posed by new trading relationships.[5] Again, EU practice with what it terms ‘sustainability impact assessment’ of future trade agreements provides a potential model to draw from.[6] 

However, process is no substitute for action. Human rights impact assessment is never an end in itself; rather, it is a means to a positive end, in this case a trade agreement which is aligned with the trading partners’ respective human rights obligations and aspirations. It bears remembering, though, that the idea of assessing trade proposals for future human rights risks is a relatively recent one. Do we have the tools and resources to make sure that this is a meaningful compliance and risk management exercise?

Thus far there is little evidence that human rights impact assessment and stakeholder engagement exercises are having any real impact on the content of trade agreements.[7] This is the case even in the EU, where practice in these areas is the most advanced and systematic.[8]

There are several possible reasons for this. First, the methodological challenges are enormous. Aside from the crystal-ball gazing needed to forecast the social, economic and environmental effects of a trade intervention well into the future, demonstrating causal links between a trade agreement and a predicted adverse impact is often highly problematic given the number of other economic and political factors that may be in play.[9]

Secondly, there are many challenges around the need to engage with affected people and listen to their views.[10] The sheer number of possible impacts of a trade agreement on different individuals and communities, as well as the range of rights potentially engaged, makes this a difficult (some would say impossible) task. Some prioritization is always necessary.

This makes for difficult decisions about who to engage with and how. Perceived bias or an apparent lack of even-handedness – favouring business compared to civil society, for instance – can sow mistrust about the true aims of such a process, undermining its future effectiveness as participants begin to question whether it is genuine or worthwhile.[11]

The challenges are even more acute where impact assessment practitioners are tasked with investigating potential human rights impacts in other countries. Even if it is possible to get past the inevitable political sensitivities,[12] the sort of in-depth consultations required will be beyond the budget and time constraints of most assignments.[13]

There are good reasons why trade policy should be subject to greater public and parliamentary scrutiny, and why there should be more opportunities for public participation in the formation of new trading regimes. By building more opportunities for stakeholder consultation at these stages, we can acquire perspectives on trade that are not available from other forms of assessment and analysis.

However, policymakers should be wary of overstating the benefits of existing procedural models. Human rights impact assessment processes are still struggling to provide compelling analyses of the relationships between trade agreements and the enjoyment of human rights, let alone a roadmap for policymakers and trade negotiators as to what should be done.[14]

And financial and practical barriers to participation in stakeholder engagement exercises mean that, at best, these will provide only a partial picture of stakeholder impacts and views.

Experiences with human rights impact assessment of trade agreements so far demonstrate the need for realism about two things: first, the extent to which one can sensibly anticipate and analyse human rights-related risks and opportunities in the preparation stages for a new trading agreement; and, second, the extent to which problems identified in this way can be headed off with the right form of words in the treaty itself.

Both recent UK select committee reports place considerable faith in the ability of pre-project transparency and scrutiny processes to flush out potential problems and prescribe solutions. Of course, there may be cases where frontloading the analysis in this way could be useful, for instance where the human rights implications are so clear that they can readily be addressed through upfront commitments by the parties concerned, whether by bespoke or standardized approaches.

More often, though, for a trade agreement running many years into the future, human rights impacts and implications will take time to emerge, suggesting the need for robust monitoring and mitigation frameworks designed with longevity in mind. Ideally, pre-signing approval and assessment processes would lay the groundwork for future action by both trading partners, either jointly or separately (though preferably both).

To this end, as well as developing ideas for more robust substantive provisions on human rights, policymakers should consider the institutional arrangements required – whether pursuant to the trade agreement or by complementary processes – to ensure that human rights-related risks identified during the planning stages are properly and proactively followed up, that emerging risks are tackled in a timely fashion, and that there are opportunities for meaningful stakeholder contributions to these processes.

Notes

[1] UK Joint Committee on Human Rights (2019), ‘Human Rights Protections in International Agreements, Seventeenth Report of Session 2017–19’, HC 1833 HL paper 310, 12 March 2019, https://publications.parliament.uk/pa/jt201719/jtselect/jtrights/1833/1833.pdf; and House of Commons International Trade Committee (2018), ‘UK Trade Policy Transparency and Scrutiny, Sixth Report of Session 2017-2019’, HC 1043, 29 December 2018.

[2] European Parliament and Directorate General for External Policies (2019), Parliamentary scrutiny of trade policies across the western world, study paper, March 2019, http://www.europarl.europa.eu/RegData/etudes/STUD/2019/603477/EXPO_STU(2019)603477_EN.pdf.

[3] European Commission (2019), ‘Trade policy and you’, http://ec.europa.eu/trade/trade-policy-and-you/index_en.htm.

[4] See UK Joint Committee on Human Rights (2019), ‘Human Rights Protections in International Agreements’, para 12; and House of Commons International Trade Committee (2018), ‘UK Trade Policy Transparency and Scrutiny’, paras 124–34.

[5] OHCHR (2003), Report of the High Commissioner for Human Rights on Human Rights, Trade and Investment, 2 July 2003, E/CN.4/Sub.2/2003/9, Annex, at para 63; UN Economic and Social Council (2017), ‘General Comment No 24 (2017) of the Committee on Economic, Social and Cultural Rights on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities’, UN Doc. E/C.12/GC/24, 10 August 2017, para 13; and UN General Assembly (2011), ‘Guiding principles on human rights impact assessment of trade and investment agreements’, Report of the Special Rapporteur on the Right to Food, Olivier De Schutter, UN Doc. A/HRC/19/59/Add.5, 19 December 2011.

[6] European Commission (2016), Handbook for Sustainability Impact Assessment (2nd ed.), Brussels: European Union, http://trade.ec.europa.eu/doclib/docs/2016/april/tradoc_154464.PDF.

[7] Zerk, J. (2019), Human Rights Impact Assessment of Trade Agreements, Chatham House Research Paper, London: Royal Institute of International Affairs, https://www.chathamhouse.org/publication/human-rights-impact-assessment-trade-agreements.

[8] Ibid., pp. 11–13. For a detailed explanation of the EU’s approach to human rights impact assessment, see European Commission (2016), Handbook for Sustainability Impact Assessment.

[9] Zerk (2019), Human Rights Impact Assessment of Trade Agreements, pp. 14–21.

[10] Ibid., pp. 21–22.

[11] Ergon Associates (2011), Trade and Labour: Making effective use of trade sustainability impact assessments and monitoring mechanisms, Final Report to DG Employment, Social Affairs and Inclusion European Commission, September 2011; and Gammage, C. (2010), ‘A Sustainability Impact Assessment of the Economic Partnership Agreements: Challenging the Participatory Process’, Law and Development Review, 3(1): pp. 107–34. For a civil society view, see Trade Justice Movement (undated), ‘Trade Justice Movement submission to the International Trade Committee inquiry into UK Trade Policy Transparency and Scrutiny’, https://www.tjm.org.uk/resources/briefings/tjm-submission-to-the-international-trade-committee-inquiry-into-uk-trade-policy-transparency-and-scrutiny, esp. paras 23–32.

[12] Zerk (2019), Human Rights Impact Assessment of Trade Agreements, pp. 20–21.

[13] Ibid., pp. 21–22.

[14] Ibid.

This essay was produced for the 2019 edition of Chatham House Expert Perspectives – our annual survey of risks and opportunities in global affairs – in which our researchers identify areas where the current sets of rules, institutions and mechanisms for peaceful international cooperation are falling short, and present ideas for reform and modernization.

In this introduction to a special section of the September 2019 issue of International Affairs, we revisit the main themes and arguments of our article ‘Beyond seablindness: a new agenda for maritime security studies’, published in this journal in November 2017. We reiterate our call for more scholarly attention to be paid to the maritime environment in international relations and security studies. We argue that the contemporary maritime security agenda should be understood as an interlinked set of challenges of growing global, regional and national significance, and comprising issues of national, environmental, economic and human security. We suggest that maritime security is characterized by four main characteristics, including its interconnected nature, its transnationality, its liminality—in the sense of implicating both land and sea—and its national and institutional cross-jurisdictionality. Each of the five articles in the special section explores aspects of the contemporary maritime security agenda, including themes of geopolitics, international law, interconnectivity, maritime security governance and the changing spatial order at sea.

International law applies to cyber operations – but views differ on exactly how. Does state-sponsored interference in another state's affairs using cyber means – for example,  disinformation campaigns in elections, disabling government websites, or disrupting transport systems – breach international law? If so, on what basis and how are the principles of sovereignty and non-intervention relevant? States are increasingly attributing cyber operations to other states and engaging in the debate on how international law applies, including circumstances that would justify countermeasures.

As states meet to debate these issues at the UN, the panel will explore how international law regulates cyberoperations by states, consider the prospects of progress at the UN, and assess the value of other initiatives.

This event coincides with the launch of a Chatham House research paper which analyses how the principles of sovereignty and intervention apply in the context of cyberoperations, and considers a way forward for agreeing a common understanding of cyber norms.

This event will bring together a broad group of actors, including policymakers, the private sector, legal experts and civil society, and will be followed by a drinks reception.

 

Marysia Zalewski's work has taught us, as a collective of feminist scholars, to be cautious of neat instruction manuals and coherently set out plans of action; of claims to sure knowledge about danger, violence, and its subjects and remedies; of the fanfare of grand arrivals; and of the quieter staking of ground that has been seemingly won. Zalewski has persistently reminded us in different ways that we/she does ‘not even know what gender is or does’. Far from a flippant response to the emptiness of gender mainstreaming policies, this seemingly simple statement instead serves as a glaring post-it note on the margins of our texts about International Relations theory, feminism, sex/gender and violence— both those that we read, as well as those that we write. However, this lesson is often forgotten in our rush to understand and establish gendered harms as valid and important, and to seek their redress. Gleaning insights from Zalewski's work, this article critically considers possible responses to the 2018 Nobel Peace Prize. Its aim is not to delve into a discussion of the politics or effects of the Peace Prize as such, but to instead use the 2018 Peace Prize as a marker—a moment to consider the possibility for critique in relation to sexual violence.

The United Kingdom's decision to leave the European Union has ramifications beyond the UK and the EU. This article analyses the impact of the Brexit referendum on the UK's political capital in the United Nations Security Council; a dimension of Brexit that has received little attention thus far. Drawing on extensive elite interviews we show that the UK has considerable political capital in the Council, where it is seen as one of the most effective actors, but the reputational costs of Brexit are tarnishing this image. With case-studies on the UK's role in Somalia and Yemen we show how the UK has been able to further its interests with dual roles in the EU and Security Council, and the risks posed by tensions between trade and human rights after Brexit. We also analyse what it takes to be influential within the Security Council and argue that more attention should be paid to the practices of diplomacy. Influence is gained via penholding, strong diplomatic skill and a well-regarded UN permanent representative. The UK accrues political capital as a leader on the humanitarian and human rights side of the Council's agenda, but this reputation is at risk as it exits the EU.

Summary

• The vast majority of state-to-state cyberattacks consist of persistent, low-level intrusions that take place below the threshold of use of force. International law, including the principle of non-intervention in another state’s internal affairs and the principle of sovereignty, applies to these cyber operations.
• It is not clear whether any unauthorized cyber intrusion would violate the target state’s sovereignty, or whether there is a threshold in operation. While some would like to set limits by reference to effects of the cyber activity, at this time such limits are not reflected in customary international law. The assessment of whether sovereignty has been violated therefore has to be made on a case by case basis, if no other more specific rules of international law apply.
• In due course, further state practice and opinio iuris may give rise to an emerging cyber-specific understanding of sovereignty, just as specific rules deriving from the sovereignty principle have crystallized in other areas of international law.
• Before a principle of due diligence can be invoked in the cyber context, further work is needed by states to agree upon rules as to what might be expected of a state in this context.
• The principle of non-intervention applies to a state’s cyber operations as it does to other state activities. It consists of coercive behaviour by one state that deprives the target state of its free will in relation to the exercise of its sovereign functions in order to compel an outcome in, or conduct with respect to, a matter reserved to the target state.
• In practice, activities that contravene the non-intervention principle and activities that violates sovereignty will often overlap.
• In order to reach agreement on how international law applies to states’ cyber operations below the level of use of force, states should put their views on record, where possible giving examples of when they consider that an obligation may be breached, as states such as the UK, Australia, France and the Netherlands have done.
• Further discussion between states should focus on how the rules apply to practical examples of state-sponsored cyber operations. There is likely to be more commonality about specific applications of the law than there is about abstract principles.
• The prospects of a general treaty in this area are still far off. In due course, there may be benefit in considering limited rules, for example on due diligence and a prohibition on attacking critical infrastructure, before tackling broad principles.

In discussions to date about how international law applies in cyberspace, commentators have tended to focus their attention on how the rules on the use of force, or the law of armed conflict, apply to cyber activities conducted by states that give rise to physical damage, injury or death.

But in practice, the vast majority of state cyberattacks fall below this threshold. Far more common are persistent, low-level attacks that may leave no physical trace but that are capable of doing significant damage to a state’s ability to control its systems, often at serious economic cost.

Such cyber incursions might include network disruptions in the operation of another government’s websites; tampering with electoral infrastructure to change or undermine the result; or using cyber means to destabilize another state’s financial sector.

For these kinds of cyber operation, the principle of sovereignty, and the principle of non-intervention in another state’s internal affairs, are the starting point.

A UN Group of Government Experts (GGE) agreed in 2013 and 2015 that the principles in the UN Charter, including sovereignty and the prohibition on intervention in another state’s affairs, apply to states’ activities in cyberspace. The 2015 GGE also recommended eleven (non-binding) norms of responsible state behaviour in cyberspace.

However, states have not yet reached agreement on how to apply these principles. Until recently, there has also been very little knowledge of what states actually do in cyberspace, as they usually conduct cyber operations covertly and have been reluctant to put their views on record.

A new Chatham House research paper analyses the application of the principles of sovereignty and non-intervention to state cyberattacks that fall below the principle of use of force. As well as analysing the application of the law in this area, the paper also makes recommendations to governments on how they might best make progress in reaching agreement in this area.

Existing rules or new rules?

As the research paper makes clear, there is currently some debate, principally between countries in the West, about the extent to which sovereignty is a legally binding rule in the context of cyberspace and, if so, how it and the principle of non-intervention might apply in practice.

In the last few years, certain states have put on record how they consider international law to apply to states’ activities in cyberspace, namely the UK, Australia, France and the Netherlands. While there may be some differences in their approaches, which are discussed in the paper, there also remains important common ground: namely, that existing international law already provides a solid framework for regulating states’ cyber activities, as it regulates every other domain of state-to-state activity.

There is also an emerging trend for states to work together when attributing cyberattacks to hostile states, enabling them to call out malign cyber activity when it violates international law. (See, for example, the joint statements made in relation to the NotPetya cyber attack and malicious cyber activity attributed to the Russian government).

However, other countries have questioned whether existing international law as it stands is capable of regulating states’ cyber interactions and have called for ‘new legal instruments’ in this area.

This includes a proposal by the Shanghai Cooperation Organization (led by Russia and China) for an International Code of Conduct on Information Security, a draft of which was submitted to the UN in 2011 and 2015, without success. The UN has also formed a new Open-Ended Working Group (OEWG) under a resolution proposed by Russia to consider how international law applies to states’ activities in cyberspace.

The resolution establishing the OEWG, which began work earlier this year, includes the possibility of the group ‘introducing changes to the rules, norms and principles of responsible behaviour of States’ agreed in the 2013 and 2015 GGE reports. In the OEWG discussions at the UN in September, several countries claimed that a new legal instrument was needed to fill the ‘legal vacuum’ (Cuba) or ‘the gap of ungoverned areas’ (Indonesia).

It would be concerning if the hard-won consensus on the application of international law to cyberspace that has been reached at past GGEs started to unravel. In contrast to 2013 and 2015, the 2017 meeting failed to reach an agreement.

On 9 December, a renewed GGE will meet in New York, but the existence of the OEWG exploring the same issues in a separate process reflects the fact that cyber norms have become an area of geopolitical rivalry.

Aside from the application of international law, states are also adopting divergent approaches to the domestic regulation of cyberspace within their own territory. The emerging trend towards a ‘splinternet’ – i.e. between states that believe the internet should be global and open on the hand, and those that favour a ‘sovereignty and control’ model on the other  – is also likely to make discussions at the GGE more challenging.

Distinct from the international law concept of sovereignty is the notion of ‘cybersovereignty’, a term coined by China to describe the wide-ranging powers it assumes under domestic law to regulate its citizens’ access to the internet and personal data within its territory. This approach is catching on (as reflected in Russia’s recently enacted ‘Sovereign Internet Law’), with other authoritarian states likely to follow suit.

The importance of non-state actors

In parallel with regional and UN discussions on how international law applies, a number of initiatives by non-state actors have also sought to establish voluntary principles about responsible state behaviour in cyberspace.

The Global Commission on the Stability of Cyberspace, a multi-stakeholder body that has proposed principles, norms and recommendations to guide responsible behaviour by all parties in cyberspace, recently published its final report. The Cybersecurity Tech Accord  aims to promote collaboration between tech companies on stability and resilience in cyberspace. President Macron’s ‘Paris Call for Trust and Security in Cyberspace’ has to date received the backing of 67 states, 139 international and civil society organizations, and 358 private-sector organizations.

It remains to be seen in the long term whether the parallel processes at the UN will work constructively together or be competitive. But notwithstanding the challenging geopolitical backdrop, the UN GGE meeting next week at the least offers states the opportunity to consolidate and build on the results of past meetings; to increase knowledge and discussion about how international law might apply; and to encourage more states to put their own views of these issues on the record.

Michelle Bachelet, as a young woman you became involved with political issues, supporting Chile’s transition to democracy following the Augusto Pinochet regime. What first sparked your interest in politics and what was it like for you as a young woman in Chile at this time?

I guess it’s related to the environment that I lived in as a child because none of my parents were involved in politics but they were people who were interested in what happened to other people. We would have interesting discussions about what was going on in Chile and around the world and I had grown up being a person who wanted to be part of finding solutions to different challenges.

When I was a student, there were lots of things happening in Chile that I became interested in even though I was in medical school at the time. Then came an important political moment in the 1970s for Chile and I thought that I needed to help make Chile a better place for everyone – that my voice alone would not be enough – so I wanted to meet other people who might have answers to the questions I had. That’s when I became politically active.

I always say that, in my milk bottle, the word responsibility was included because I always have felt responsible for things. My parents also always used to tell me that we’re all human beings and, although we might have differences, we should all have dignity and be respected and have the same rights and opportunities because it is the right thing to do. So that’s how I became what I became.

You became the first woman in Latin America to hold the post of minister of national defence in 2002 and pushed to include more women in conflict resolution. Given that the inclusion of women in peace processes increases the likelihood of agreements being reached, yet women are largely excluded from the negotiating tables, why should more women in peace and security be prioritized? 

I used to push hard to have more women as negotiators and mediators at different levels when I was minister of national defence but I was told ‘We don’t have enough women with the capacity’. Of course that was not true. So one of the tasks I set myself was to build a roster of capable women so that tomorrow nobody could use this excuse. 

We built a roster, but still, as you say, there was a tendency not to have women included at all levels. I think this is because there’s still machoism and sexism that exists at some levels. Some men feel that women are weaker, that they’re not capable enough, and that’s not true. Women are important because women have the right skills to be negotiators and mediators.

I have to say that UN Secretary-General António Guterres has done a great job by appointing women in half of all the posts for special envoys and special representatives in conflict places. But we still need to do more. 

Why do I believe women make a difference? Conflicts matter to both women and men because they impact both, but usually, the experiences of women are invisible in the eyes of many who work in negotiating and mediating peace. That’s why you need people that can bring this perspective to the table. 

The other thing is that women can often get close to other women in conflict places, and in that case, they can get a lot of useful information from women on the ground because they don’t feel threatened by other women. This is particularly true of women who have been victims of sexual violence who are more willing to tell another woman what they have experienced. 

But, at the end of the day, women are half of the population of the world and I think we need them to be represented adequately.

In 2006, you became the first female president of Chile, what was this like for you and did you feel pressure taking up this mantle?

Yes of course. I mean, there were a lot of people who would say ‘I want to vote for you but I don’t think it’s a woman’s place’. Journalists would also ask you ‘You are divorced and don’t have a man by your side. How are you going to cope?’ and I would respond by saying ‘I have always done it myself.’

Sometimes if I took some time to make a decision, because I thought it needed a bit more time to reflect on what to do, they would say ‘She doesn’t take decisions’ but if you made a quick decision then they would say ‘She improvises’. I’m not complaining, I’m just describing the kinds of things that go on, and these are the things I have spoken about with other female leaders from around the world. For example, I once talked to Helle Thorning-Schmidt, the former prime minister of Denmark, and she would tell me that during the election campaign they would discuss the size of her purse and if she had a boyfriend. I mean, really, people tend to diminish women by talking about unsubstantial issues – there will be a lot of attempts to try to bring a woman’s self-esteem down. 

What I would say is, if you know exactly why you are there and what you want to do as a president, parliamentarian or whatever and you’re sure that what you want to do is the right thing – and the smart thing – then do it. Pick a team that is honest, that works with the same passion as you and that is loyal to you but is not afraid to tell you when things aren’t working. But it’s hard and difficult and politics is getting nastier every day.

You said politics is getting nastier. Julia Gillard recently spoke to me about the dark side of social media for women. In what ways do you think politics is changing for women in particular?

I remember seeing that, in the European Parliament, about 85 per cent of women have experienced psychological violence whether they have received death threats or threats of rape and all kinds of things just because they’re female.

There is also a bias against women during election campaigns where people say she cannot be elected because she’s not capable just because she’s a woman. 

Then there are those that, as I mentioned before, try to talk about personal things or spread fake news. Politics has always been about debate between people with different positions, and that’s fine, but I think sometimes you see it goes past the limit in terms of respect for the other person.

Then there is the language. Failing to understand that the other person is a competitor, not an enemy, and using language to, sort of, symbolically destroy the other one is not right. I see it everywhere and I think that’s not what politics is for – we came to serve the people and words matter. 

I think all of these things are making a lot of people not want to get involved in politics anymore because it’s not the kind of environment that we want to be in. But I hope, on the other hand, that if we have more women in politics, maybe we can turn that trend to a more positive and constructive one, where there can still be intense debate but in a way where everybody feels that we’re all part of the same country and we can all build the country together.

How did you find your male counterparts responding to you as leader? Was there a time, for example, your gender became an issue for you while you were in office?

When I was a student of medicine, what mattered was whether you were a good student or a good doctor, not if you were a man or a woman, but in politics, I found that when I appointed ministers, some of them struggled with me being a woman. For example, sometimes I would conclude a meeting by saying ‘We’re going to do this’ but there would be a male minister who would have to have the last word. Or some of them, particularly the more senior ones who had been in senior positions before, found it challenging to accept a secondary role to a woman.

On the other hand, with the military, I had no problem. Neither as minister of defence and neither as president because they understood the chain of command.

It’s interesting to look at women in other leadership positions too. For example, I remember a friend who worked in a place many years ago and she would tell me that she needed to swear and almost to spit on the ground so that men would respect her because the majority of the leaders there were men. I said to her ‘You don’t need to look like a man to be a leader.’

Perhaps sometimes it’s more difficult because strength is understood in different ways but my message would be that you can be a leader in your own way. 

While president of Chile, you introduced a number of policies aimed at addressing women’s rights issues notably on the gender pay gap and on sexual and reproductive rights for women.

How do you view your legacy on these issues? Were there other policies you wanted to implement but were unable to? And how would you like these initiatives to be furthered today in light of, for example, the rolling back of reproductive rights for women in some parts of the world?

We went from trying to improve the legal framework that applies to women to creating the Ministry of Women and Gender Equity. We also tried to push for changing the electoral roll with quotas for women which we got to an extent but not as much as I wanted. There was no appetite for having a quota for 40 per cent of all those elected to be women so we settled for 40 per cent of all candidates to be women. We still improved a little bit in terms of the number of women being elected from 14 per cent to 24 per cent through this but I didn’t get everything I wanted. Nevertheless, during my time in office, we were able to increase the representation of women in the Senate and the House which was positive. 

On sexual and reproductive rights, in Chile, abortion was criminalized so we were able to decriminalize abortion and we also advanced LGTBI rights and so on. We also developed a better legal framework for dealing with sexual violence but of course sexual violence is a complicated issue that cannot be solved in a short period of time and we need to continue working strongly on that.

The other thing I’m a believer of is the importance of early child development which is good for both boys and girls. So we set up a network of kindergartens free of charge, particularly for poorer people, because there are so many women who cannot afford to put their children in kindergartens while they study or work. So we tried to do lots of things to expand women’s opportunities and women’s rights during my time in office.

Women are increasingly making it to the top level of politics around the world, yet in Latin America, the number of female heads of states has dropped to 0 following a generation of female political leaders across the continent.

Why do you think this is the case and could we see this change again in the future? Do you think Chile is likely to see another female president soon, and if so, who do you think could take up the mantle?

The truth is that there was a moment that I think the region had four or so female heads of states, and although there are currently some female vice presidents, the number of presidents is 0 but I wouldn't be able to say that this is necessarily a bad thing. There doesn’t need to be a female president every time. We need to have female leaders where their citizens believe that they’re the best people to lead their countries.

But we do need to do more to support women making it to the top so they can have all the skills needed to be a president or a prime minister and work more with young women too so that they can think of themselves as being able to take up such positions of leadership in the future. 

In Chile, I hope, of course, there will be another woman president one day but I have no idea when. I will not run again, I can tell you that, but I hope when the time comes, the people of Chile will believe in them.

In your current role, you have said that ‘The climate crisis is the greatest threat to human rights’ and that climate change and gender equality are inextricably linked. How do you see this link and what does that mean for how these issues should be addressed?

Climate change is the biggest threat to human rights because it affects the right to life, to food, to health and to live without violence, and if we are not able to tackle it, it will lead to water scarcity, food insecurity, forced migration and conflict – all of which we are seeing already.

Why is it linked to gender equality? There are many reasons. One of them is that women, who make up half the global population, are usually among the most vulnerable people in the world. Today there are billions of people who don’t have access to water, sanitation or housing with women having less access to all of these tools that would permit them to adapt [to a changing climate].

For example, women will be more affected by food insecurity because imagine a woman who is pregnant without food. She will likely end up being underweight, and then afterwards, this will impact her child who will be at risk of malnourishment. We see it everywhere where women avoid eating so that their children can eat.

Furthermore, if we have water scarcity, that will also affect women because today, in many parts of the world, women and girls fetch the water for their families. If water becomes increasingly scarce, they will have to walk longer to fetch it, and today we already see women and girls who are subject to sexual gender-based violence as they carry out their day-to-day tasks. 

That’s why we need to provide women with the tools to empower them and to devise gender-responsive policies to climate change. 

Throughout your career, have you seen the scale and pace of change for human rights, particularly women’s rights, around the world that you would have wanted?

It depends on how you look at things. It has been over 70 years since the Universal Declaration of Human Rights was written when maternal mortality was incredibly high in many parts of the world and women did not have the vote everywhere.

If you look from that time to now, of course, women’s rights have seen a lot of progress. Maternal mortality has reduced and women can vote I think [in almost every democracy].

But over the last few years, we have seen a pushback on women’s rights, particularly in some areas like sexual and reproductive health rights, and that it something that concerns me a lot.

So I would say we’re not there yet. I hope we will be able to push back the pushback and move forward. Because if we go on along the same trajectory as we are now, we will have economic equality for women in 120 years, which is too long. I mean, nobody wants your great, great, great grandchildren to have to wait so long for equality. We need to stand up for women’s rights – and for all human rights – now and accelerate the progress we’ve been making.

In the past couple of months, there have been ongoing protests in Chile and around the world. What in your estimation is driving the protests and in what ways should governments, civil society and others respond to help address their demands?

I think it’s a phenomenon we are seeing in Chile and many places around the world. It’s a new process where young people are voicing their grievances but with no particular leaders. It’s what some people are calling a ‘new power’ and I think the situation in Chile is very similar to what’s happening in Lebanon, Hong Kong and elsewhere but with different triggers. 

In some places, people are challenging the outcome of an election; in other places, they are protesting because leaders want to change the constitution to be re-elected again; in other places, it can be, like in the case of Chile, a result of economic issues following the increase of the price of what you would call the Underground here. These inequalities lead to a mistrust in our institutions and in traditional leaders and I think this is a universal experience at the moment.

The current political and economic system is not delivering and it’s failing to meet people’s needs. So these young people protesting don’t see, in the current political and economic system, the solutions to the concerns they have.

The other thing that is interesting is the role social media has played in many of these recent protests. Social media has become a different way to allow people to learn from each other. When the students in Chile decided to protest against the increasing price of public transport, they went to the Metro and jumped over the barriers and then, two weeks’ later, I saw it in New York. Hundreds of students, for different reasons – against police brutality – doing exactly the same thing. So they learn from each other and they see what works in one place. 

So I think there is something in the world that is making people go to the streets. If it’s peacefully done then that’s fine. The problem is that sometimes it has triggered a harsh response from governments and that leads to more violence. 

I believe what needs to be done is to try to set up a national dialogue that includes all sectors of all societies where governments listen to the grievances that people have. You cannot change things in a day but I think people are reasonable enough to understand if you are committed to change. 

That’s why the UN has developed the Agenda 2030 on Sustainable Development to leave no one behind. It probably won’t solve everything, but it will, I guess, if we are able to achieve the goals, help us have a planet that’s for everyone. 

International criminal justice provides a stark reminder that state sovereignty is not an absolute, and that the world’s most heinous crimes should be prosecuted at an international level, particularly where domestic systems lack the capacity or will to hold perpetrators to account. 

The post-Cold War period witnessed a dramatic rise in the number of international tribunals with jurisdiction over war crimes and serious human rights abuses in countries including Cambodia, East Timor, Rwanda, Liberia, Sierra Leone and Yugoslavia. With these processes approaching, or having reached the end of their dockets, many have called for the creation of new tribunals to address more recent conflicts, including the army crackdown in Myanmar in 2017 that resulted in evidence of crimes against humanity against the Rohingya. 

In January this year, the International Court of Justice (ICJ) imposed emergency provisional measures on Myanmar, instructing it to prevent genocidal violence against its Rohingya minority. But a final judgement is expected to take years and the ICJ has no way of enforcing these interim measures. Myanmar has already responded defiantly to international criticism. 

Model for justice

Myanmar is not the first country to face scrutiny for such crimes in Southeast Asia. The Extraordinary Chambers in the Courts of Cambodia (ECCC), more commonly known as the Khmer Rouge Tribunal was established in 1997 to prosecute Khmer Rouge leaders for alleged violations of international law and serious crimes perpetrated during the Cambodian genocide. This provides an opportunity to consider whether the Tribunal can act as a ‘hybrid’ model for justice in the region. 

The first lesson that can be taken from the Cambodian context is that the state must have the political will and commitment to pursue accountability. It was indeed the Cambodian government itself, who requested international assistance from the United Nations (UN), to organize a process for holding trials. The initial recommendation of the UN-commissioned Group of Experts was for the trial to be held under UN control, in light of misgivings about Cambodia’s judicial system. Prime Minister Hun Sen rejected this assessment and in prolonged negotiations, continued to spearhead the need for domestic involvement (arguably, in order to circumscribe the search for justice). This eventually resulted in the creation of a hybrid body consisting of parallel international and Cambodian judges and prosecutors with supermajority decision-making rules.   

It is worth noting that the Hun Sen government initially chose to do business with former Khmer Rouge leaders, until it became more advantageous to embrace a policy of putting them on trial. It is possible to infer from this that there will be no impetus for action in Myanmar until it is domestically advantageous to do so. At present, this appetite is clearly lacking, demonstrated by de-facto leader Aung San Suu Kyi shying away from accountability and instead defending the government’s actions before the ICJ.

One unique aspect of the Khmer Rouge Tribunal has been the vast participation by the Cambodian people in witnessing the trials as well as widespread support for the tribunal. This speaks to the pent-up demand in Cambodia for accountability and the importance of local participation. While international moral pressure is clear, external actors cannot simply impose justice for the Rohingya when there is no domestic incentive or support to pursue this. The reality is that the anti-Rohingya campaign has galvanized popular support from the country’s Buddhist majority. What is more, the Rohingya are not even seen as part of Myanmar so there is an additional level of disenfranchisement.

Secondly, the Cambodian Tribunal illustrates the need for safeguards against local political interference. The ECCC was designed as national court with international participation. There was an agreement to act in accordance with international standards of independence and impartiality, but no safeguards in place against serious deficiencies in the Cambodian judicial system. Close alliances between judges and the ruling Cambodian People’s Party, as well as high levels of corruption meant the tribunal effectively gave Hun Sen’s government veto power over the court at key junctures. Despite the guise of a hybrid structure, the Cambodian government ultimately retained the ability to block further prosecutions and prevent witnesses from being called. 

In Myanmar, political interference could be a concern, but given there is no popular support for justice and accountability for crimes committed against the Rohingya, the prospects of a domestic or hybrid process remain unlikely. However, there are still international options. The investigation by the International Criminal Court (ICC) into crimes that may have taken place on the Myanmar–Bangladesh border represents a potential route for justice and accountability. The UN Human Rights Council has also recently established the Independent Investigative Mechanism for Myanmar (IIMM), mandated to collect and preserve evidence, as well as to prepare files for future cases before criminal courts.

Finally, the Cambodian case illustrates the culture of impunity in the region. The ECCC was conceived partly as a showcase for international standards of justice, which would have a ‘contagion effect’ upon the wider Cambodian and regional justice systems. 

Cambodia was notorious for incidents in which well-connected and powerful people flouted the law. This culture of impunity was rooted in the failure of the government to arrest, try and punish the Khmer Rouge leadership. The Tribunal, in holding perpetrators of the worst crimes to account, sought to send a clear signal that lesser violations would not be tolerated in the same way. Arguably, it did not achieve this in practice as Cambodia still has a highly politicized judicial system with high levels of corruption and clear limits to judicial independence. 

What this illustrates is that the first step towards accountability is strengthening domestic institutions. The United Nation’s Special Rapporteur on the situation of human rights in Myanmar has urged domestic authorities to embrace democracy and human rights, highlighting the need to reform the judicial system in order to ensure judicial independence, remove systemic barriers to accountability and build judicial and investigatory capacity in accordance with international standards. Based on this assessment, it is clear that domestic institutions are currently insufficiently independent to pursue accountability.

The ECCC, despite its shortcomings, does stand as proof that crimes against humanity will not go completely unpunished. However, a process does not necessarily equal justice. The region is littered with justice processes that never went anywhere: Indonesia, Nepal, and Sri Lanka. International recourse is also challenging in a region with low ratification of the ICC, and the absence of regional mechanisms like the Inter-American Court of Human Rights, the European Court of Human Rights, and the African Court on Human and Peoples’ Rights (although their remit is not mass atrocity prosecutions). 

The Cambodian case study illustrates the challenges of ensuring justice and accountability within the region. The end of impunity is critical to ensure peaceful societies, but a purely legalistic approach will fail unless it is supported by wider measures and safeguards. It is these challenges, that undermine the prospects for ensuring justice for the Rohingya within Myanmar.

During this extraordinary global public health emergency, governments must strike the right balance between assertive measures to slow the spread of the virus and protect lives on the one hand, and respect for human autonomy, dignity and equality on the other.

International law already recognises the grave impact of pandemics and other catastrophic events on social order and provides criteria to guide states in their emergency action. The International Covenant on Civil and Political Rights permits curbs on the right to ‘liberty of movement’ so long as restrictions are provided by law, deemed necessary to protect public health, and consistent with other rights in that treaty.

Freedom of expression and association, and the rights to privacy and family life are also qualified in these terms under international and regional human rights treaties. But, as emphasised in the Siracusa Principles, any limitations must not be applied in an arbitrary or discriminatory way, and must be of limited duration and subject to review.

International law also guarantees the right to the highest attainable standard of health, while states are specifically required to take steps to prevent, treat and control epidemics under the International Covenant on Economic, Social and Cultural Rights. Even in health emergencies, access to health services must be ensured on a non-discriminatory basis, especially for vulnerable or marginalised groups.

Abuse of coronavirus emergency measures

Many governments have taken pains to craft emergency laws that respect human rights, such as permitting reasonable exceptions to lockdowns for essential shopping and exercise, and making them subject to ongoing parliamentary review and sunset clauses. But even laws that appear to be human rights compliant can still easily be misapplied, as the recent debates about over-zealous policing of people walking and travelling in the UK illustrate.

And disturbing stories are emerging from states where police brutality is entrenched. In Kenya, a 13-year-old boy was reportedly shot on the balcony of his home by police enforcing a coronavirus curfew. Authorities in the Philippines' are allegedly locking those caught defying the curfew in dog cages.

As the recent history of counterterrorism demonstrates, emergency laws tend to be sticky, remaining on the statute books far longer than desirable.

The virus is also proving a powerful accelerant for the current global authoritarian drift which is so detrimental to progress on human rights. Many authoritarian leaders have seized the opportunity to further reduce constraints on their power.

Hungary's prime minister Viktor Orbán has used the pandemic as a pretext for new laws enabling him to rule by decree, completing the country's transition to an elected dictatorship. In Brazil, president Jair Bolsonaro has suspended deadlines for public bodies to reply to freedom of information requests. Iran is the latest of many repressive states in the Middle East to ban the printing and distribution of all newspapers. In China, the government brushed off criticism over ‘disappearances’ of whistleblowers and citizen journalists who questioned its response to the crisis.

Others have exploited the turmoil to undermine justice for human rights abuses - Sri Lanka's president Gotabaya Rajapaksa pardoned one of the only soldiers held accountable for crimes during the country's brutal civil war.

Coronavirus also places liberal values under further strain. Fear is a major driver in the appeal of populist authoritarians and the virus is stoking it. One poll showed 73% of British citizens agreed coronavirus is just the latest sign that the world we live in is increasingly dangerous. Extremists are exploiting these fears to spread hate by blaming the outbreak on ethnic or religious groups, and encouraging those infected to spread it to these groups.

The closure of borders helps reinforce xenophobic tendencies, and high public tolerance of emergency measures could easily spill into normalisation of intrusive digital surveillance and restrictions on liberty for other reasons well into the future.

Disadvantaged groups face a higher level of risk from the crisis. The health of aboriginal Australians is so poor that those aged 50 and above are being urged to stay home, advice otherwise given to those over 70 in the general population. The Moria refugee camp on Lesbos is reporting no soap and just one water tap for 1,300 refugees. In the UK, asylum seekers struggle to self-isolate in shared accommodation and have a daily allowance of just £5.40 for food, medicine and toiletries. Women's rights groups are reporting a spike in domestic violence.

For countries racked by war and extreme poverty, the impact is catastrophic. The virus is set to run rampant in slums, refugee camps and informal settlements where public health systems - if they exist at all - will struggle to cope. And detainees are among the most at risk, with the UN calling for release of political prisoners and anyone detained without sufficient legal basis.

But the crisis has galvanised debate around the right to health and universal health coverage. Many governments have quickly bankrolled generous relief packages which will actually safeguard the socio-economic rights of many, even if they are not being justified in those terms. Portugal and Ireland have rolled back barriers to accessing healthcare for asylum seekers and other marginalised migrants.

The pandemic strikes as many powerful governments have become increasingly nationalistic, undermining or retreating from international rules and institutions on human rights. But as the crisis spreads, the role of well-established international human rights standards in shaping and implementing effective - but also legitimate - measures is becoming ever clearer.

The virus has reminded us of our interconnectedness as human beings and the need for global cooperation to protect our lives and health. This may help to revive popular support for human rights, creating momentum for the efforts to tackle inequality and repression - factors which have made the global impact of coronavirus so much worse than it might have been.

The recognition by Ukraine of the jurisdiction of the International Criminal Court (ICC) to consider grave crimes allegedly perpetrated in its territory has led to the ICC Prosecutor’s preliminary examination identifying a wave of alleged war crimes and crimes against humanity.

There are claims of persecution, forced conscription, deportation, sham trials, enforced disappearances, and property seizure - in Crimea. As well as killings, torture, inhuman treatment, sexual violence, and indiscriminate shelling - in Donbas. The court now needs to decide whether to open a full investigation which could lead to charges against specific individuals, as in the trial currently taking place in the Netherlands over MH-17.

However, the ICC does remain a court of last resort as Ukraine retains the principal power to prosecute grave violations perpetrated in its eastern regions and Crimea, with the court only stepping in if Ukraine (or another court with jurisdiction) is either unwilling or unable to do so.

As the evidence mounts up, Ukrainian investigators, prosecutors and judges are becoming more open to cooperation with foreign experts, law firms, human rights NGOs and younger domestic professionals - a significant proportion of whom are women.

Transformation shows determination

This is an unusual shift, given the rigid hierarchical nature of post-Soviet institutions, with elderly males in most of the top positions. The transformation shows the determination to see perpetrators of crimes in Crimea and Donbas tried by the ICC, with joint professional development trainings and joint communications about the alleged crimes.

Ukraine has also been strengthening its institutions. The Prosecutor’s Office of the Autonomous Republic of Crimea has been improving quality control of its war crime proceedings, and has taken a strong pro-ICC stance. The Office of the Prosecutor General established a special department to monitor the armed conflict proceedings, and two specialised war crime units have been formed in Donbas.

Although too early to assess progress - given recent prosecution reform and that much-needed legislation on international crimes is still pending – these are promising signs of Ukraine’s intent to take a specialised approach to armed conflict violations. And Ukrainian civil society organisations are also playing a more important role, documenting alleged crimes and sending evidence to the ICC.

Any intervention by the ICC in Ukraine also has a considerable impact on the wider dynamics of addressing international crimes, further extending the court’s reach beyond a focus on Africa which has attracted widespread criticism since it began in 2002.

The ICC has already opened investigations in Georgia, Bangladesh/Myanmar, and Afghanistan, with preliminary examinations in Colombia, Venezuela, Iraq/UK, Palestine, and The Philippines. But the Ukrainian case would further develop the European subtleties of the court’s jurisprudence.

Although the ICC is currently investigating the 2008 Russia-Georgia war, the active phase of that armed conflict lasted for just five days whereas Russia’s military involvement in Ukraine has been ongoing for the six years. The temporal difference in no way diminishes the suffering of victims and the necessity for the proper investigation, prosecution and compensation in the Georgian context.

And yet, going by even the preliminary findings of the ICC prosecutor, the spectrum of war crimes and crimes against humanity allegedly perpetrated in Ukraine is much wider. Some incidents, such as the illegal construction of the Crimean Bridge, is an amalgam of the violations against property, cultural heritage and the environment. Cumulatively, the Ukrainian and Georgian cases would substantially contribute to the development of the court’s emerging European lenses.

The Russia-Ukraine armed conflict is also the first instance of armed hostilities of such magnitude and duration in Europe since World War II and the Yugoslav Wars. The ICC’s readiness to take on such geopolitically challenging cases which leave itself open to attack will be tested.

But by examining new contexts - including Ukraine - the ICC would develop a more layered reading of the nature and scope of the crimes it works on. For example, alleged indoctrination and use of children by armed groups in eastern Ukraine is likely to differ from the known practices of abducting and recruiting child soldiers in Africa.

Investigating evidence of Russia’s persecution of pro-Ukrainian activists - forcing them out of Crimea - coupled with the creation of favourable conditions for Russian citizens to relocate to Crimea could lead to proving the existence of a policy of mass colonisation of the peninsula - adding new layers to the court’s jurisprudence on population displacement. And previously under-prosecuted crimes may come to the fore, such as attacks on cultural property or causing the destruction of the environment.

Although the ICC proceedings on Ukraine – along with those being held by the International Court of Justice (ICJ) - are unlikely to bring immediate results, Ukraine has developed an international adjudication strategy based on the available viable options and what can be practically delivered.

The simple act of a reputed international court outlining Russia’s alleged violations in Crimea and Donbas and naming those individually responsible would be an impactful achievement in itself, regardless of whether Russia pays any attention or compensation.

And any international judgments or those of domestic courts such as the Dutch MH-17 proceedings and Russia’s response - predicted to be non-compliance - is an important argument for continuing sanctions against Russia over its conduct in Ukraine.

The mutually reinforcing effect of both the Crimea and Donbas proceedings within Ukraine and at international courts should not be underestimated. These investigations into war crimes, terrorism and human rights issues are deeply relevant - not only for the conflict itself, but also for the development of international law.

Part One of this series assesses Ukraine’s efforts to hold Russia accountable as a state at the International Court of Justice (ICJ).

In April 2020, UN Secretary General Antonio Guterres called for a global ceasefire in order for communities and states to focus efforts on responding to the coronavirus outbreak. The consequences of armed conflict – including displacement, detention, lack of access to health services and disrupted social infrastructures – mean that those in conflict-ridden areas are amongst the most vulnerable to the virus. Observing international humanitarian law (IHL) could be one way of safeguarding against, at least, the provision of vital medical supplies and personnel for vulnerable groups. Against the backdrop of a growing health and economic emergency that is otherwise dominating government agendas, how do we emphasise the importance of humanitarian action and guarantee - or improve - compliance?

The panellists will discuss the remit and limitations of international humanitarian law and how the pandemic might complicate compliance. What is the framework for humanitarian action under international humanitarian law? What are the challenges to delivering relief? And how has COVID-19 impacted humanitarian action in conflict-ridden areas?

This event is for Chatham House members only. Not a member? Find out more.

When powerful liberal democratic states are found to be complicit in extreme violations of human rights, how do they respond and why do they respond as they do? Drawing on the example of the United Kingdom's complicity in torture since 9/11, this article demonstrates how reluctant the UK has been to permit a full reckoning with its torturous past. We demonstrate that successive UK governments engaged in various forms of denial, obfuscation and attempts to obstruct investigation and avoid accountability. The net effect of their responses has been to deny the victims redress, through adequate judicial processes, and to deny the public adequate state accountability. These responses are not simply aimed at shielding from prosecution the perpetrators and those who have oversight of them, nor preventing political embarrassment. The various forms of denial and obstruction are also designed to ensure that collusion can continue uninterrupted. A core concern of intelligence officials and ministers has been to prevent any process that would lead to a comprehensive prohibition on involvement in operations where torture and cruel, inhuman and degrading treatment are a real possibility. The door remains wide open, and deliberately so, for British involvement in torture.

While China and Russia's general policies towards the Responsibility to Protect (R2P) are similar, the two reveal nuanced differences in addressing specific emergencies. Both express support for the first two pillars of R2P while resisting coercive intervention under its aegis, as they share anxieties of domestic political security and concerns about their international image. Nonetheless, addressing cases like the Syrian crisis, Russian statements are more assertive and even aggressive while Chinese ones are usually vague and reactive. This article highlights the two states’ different tones through computer-assisted text analyses. It argues that diplomatic styles reflect Russian and Chinese perceptions of their own place in the evolving international order. Experiences in past decades create divergent reference points and status prospects for them, which leads to their different strategies in signalling Great Power status. As Beijing is optimistic about its status-rising prospects, it exercises more self-restraint in order to avoid external containments and is reluctant to act as an independent ‘spoiler’. Meanwhile, Moscow interprets its Great Power status more from a frame of ‘loss’ and therefore is inclined to adopt a sterner approach to signal its status. Although their policies complement each other on many occasions, there is nothing akin to a Sino–Russian ‘bloc’.

Video: Marianne Schneider-Petsinger and Dr Yu Jie discuss key themes from the research paper

Summary

• The underlying driver of the ongoing US–China trade war is a race for global technological dominance. President Trump has raised a number of issues regarding trade with China – including the US’s trade deficit with China and the naming of China as a currency manipulator. But at the heart of the ongoing tariff escalation are China’s policies and practices regarding forced technology transfer, intellectual property theft and non-market distortions.
• As China’s international influence has expanded it has always been unlikely that Beijing would continue to accept existing global standards and institutions established and widely practised by developed countries based on ‘the Washington Consensus’.
• China’s desire to be an alternative champion of technology standard-setting remains unfulfilled. Its ample innovation talent is a solid foundation in its quest for global technology supremacy but tightening controls over personal freedoms could undermine it and deter potential global partners.
• It is unclear if Chinese government interventions will achieve the technological self-sufficiency Beijing has long desired. China’s approach to macroeconomic management diverges significantly from that of the US and other real market economies, particularly in its policy towards nurturing innovation.
• Chinese actors are engaged in the globalization of technological innovation through exports and imports of high-tech goods and services; cross-border investments in technology companies and research and development (R&D) activities; cross-border R&D collaboration; and international techno-scientific research collaboration.
• While the Chinese state pushes domestic companies and research institutes to engage in the globalization of technological innovation, its interventions in the high-tech sector have caused uneasiness in the West.
• The current US response to its competition with China for technological supremacy, which leans towards decoupling, is unlikely to prove successful. The US has better chances of success if it focuses on America’s own competitiveness, works on common approaches to technology policy with like-minded partners around the globe and strengthens the international trading system.
• A technically sound screening mechanism of foreign investment can prevent normal cross-border collaboration in technological innovation from being misused by geopolitical rival superpowers.

The forum aims to develop substantive and actionable policy recommendations for the future direction of global trade in a context of changing geopolitical dynamics and rapid technological transformations.

At the core of the Chatham House Global Trade Policy Forum will be the Chatham House Global Trade Conference, a series of roundtable meetings which address the range of regional and systemic trade matters, and a series of written outputs. The activities will culminate in an annual Global Trade Policy Review Briefing paper.

Our unique position in London, and as a world-leading source of independent analysis and with unparalleled convening capacity, enables Chatham House to engage with a committed network of action-oriented policymakers, business leaders, academics, and representatives from the media and civil society to develop trade policy insights. We are committed to the promotion of sustainable growth and more inclusive governance.

The forum’s work is supported by AIG (founding partner), Clifford Chance LLP, Diageo plc, and EY (supporting partners).

View our current work on International Trade and the World Trade Organization (WTO).

 

Why are these protests happening now?

The truth is, Chile is unequal, even though it actually reduced poverty from 1989, the time of the democratic transition, until today, from 40% to 16%.

There are a number of reasons for the protests. One is the most proximate cause, which is the increase in the subway fares, but that really doesn’t explain the underlying tensions.

One of those tensions is despite reductions in poverty, social mobility remains a large problem in Chile. It remains a very elitist country with limited social mobility. So, poverty may be reduced, but the likelihood that someone in the working middle class would reach the upper middle class has always been a stretch.

The second issue is a lack of political change. The last four presidents were the same two people.

Chile’s been governed, with the exception of Piñera, basically by the same political coalition, La Concertación, which is a combination of the Christian Democratic and Socialist parties. Piñera came from the right, an outside party, but even he has remained. There has been no renewal of the political leadership which again reinforces that lack of social mobility. 

Do the protesters have any other demands or grievances? 

The demands are amorphous and that’s part of the issue – they’re going to be difficult to meet. People are expressing a genuine desire for change but what would that change mean?

Chileans don’t necessarily want to change the economic model; they simply want more mobility. That’s difficult to do and these are untested demands. 

Chileans also want political reform. What Piñera offered is to rewrite the constitution, which was created under military government in 1980. Other than some changes here and there in terms of the electoral system and reduction of military power, it has pretty much remained intact.

Will constitutional change really address these demands? It’s simply a document that may create the rules for how power is allocated and conducted, but it’s not going to dramatically remake Chilean society.

You mentioned inequality as a key driver of the protests. Can you expand a bit more on the current economic situation of ordinary Chileans?

Chile is going to grow at only around 2-3%, but it was growing at around 4-5% earlier. A lot of those funds were ploughed into social programmes that have since been reduced. 

Chile’s economy really boomed in the early 2000s because of Chinese demands of Chilean imports. But as with any sort of commodities-based economy, the jobs it provides tend to be lower wage.

As a result, despite the fact that Chile tried to diversify its economy by investing in entrepreneurship and innovation, it hasn’t grown in a way that provides jobs that many associate with upward mobility. As Chile's economy cooled, its ability to lift people out of poverty lagged as well.

Two major issues for the protesters are education and pensions – can you explain why this is?

These are two issues of the economic and social model that was held up at one time as being a model for the region, the neoliberal models that are really coming under question and are in some ways at the heart of this.

One is the privatized pension system which is failing to produce the returns that retirees need to survive. The second is the education system. Chile created a voucher system where parents can shop around and send their kids to the best schools. The idea was to create competition among schools to improve.

The problem was like any market, it created a certain amount of inequality among schools. There was a problem of some schools underperforming and being relegated poorer performing students, or students being forced to go to those schools because the more successful schools were already spoken for. 

At the end of October, the government announced a series of social reforms. Will this be enough to satisfy the protesters’ demands?

Social reforms may address some of the issues of insufficient pensions or lack of quality education, but it will take a while for them to have an effect.

The second thing is, social reforms don’t address the issues of power. At the heart of this is this idea of closed economic, political and social power. That comes about through economic growth and how you break up concentrations of wealth. Social reforms aren’t going to do that, although they’ll help on the margins. 

We’re seeing horrific scenes of police violence against protesters and dozens of people have died. Has this deterred the protesters in any way? 

No, in many ways it has sort of inspired them. It has, I think, sustained the protests.

We’re not talking massive repression and tanks rolling in like Tiananmen Square. We’re talking about tear gas, rubber bullets, some injuries and deaths, and even credible reports of torture.

It’s funny you should mention this – a class I’m teaching today is about social media and protests. One of the central arguments is that successful social protests need a martyr; they need a rallying cry.

The deaths and the repression sort of help sustain that, but moreover, social media helps communicate what’s happening through videos and pictures. It really helps maintain this sense of righteousness, disdain for the government, and this idea of the need to demand change.

Where do you see this going next?

I don’t think we know. In the 60s and 70s, the political scientist Samuel Huntington argued in Political Order in Changing Societies that as economies grow, political institutions often strain to contain and channel demands. I think we’re seeing this now.

This social ferment over political, economic and social demands is uncharted water. I don’t know where this will go, but I think we’ll see a change in the constitution. We’ve already seen a fragmenting of the party system, which I think will continue. Hopefully, that will lead to new leadership that can help reflect a change in Chile itself. 

Trade has received a lot of attention recently with the US and China still negotiating a trade agreement and the World Trade Organization coming under threat. But the global trade system is also adapting to changing geopolitical dynamics and rapid technological transformations. In light of a backlash against globalization, how can trade be made more sustainable and inclusive? What actions are needed for global trade and the trading system to adjust to changes in technology and environmental considerations? What efforts are key players such as the US, EU and China taking on these fronts?

Against this backdrop, Ms Arancha González will join us for a roundtable discussion on the future of trade and how trade can play a key role in adjusting to the changes that will take place in societies over the next decade. 

The Chatham House US and Americas Programme would like to thank founding partner AIG and supporting partners Clifford Chance LLP and Diageo plc for their generous support of the Chatham House Global Trade Policy Forum.

Conventional wisdom says that foreign policy takes a backseat role in US elections. But last autumn’s Democratic primary debates suggest a potential shift is taking place in the conventional view. While healthcare dominated the discussion (Democrats attribute their 2018 midterm gains to the issue), through November foreign policy followed closely behind in second place in terms of minutes devoted to the discussion.

This trend is consistent with President Donald Trump’s America First approach to foreign policy, in which an eye is always kept on how decisions abroad play for the domestic audience. One former Trump administration official has called this dynamic the ‘recoupling’ of foreign policy with domestic policy.

The US–China trade conflict, which commanded headlines throughout 2019, is perhaps the best example of this recoupling, tying trade imbalances less with the geopolitical than with domestic impact on farmers. Immigration is another policy area in which Trump has linked domestic implications and indeed domestic opinion with foreign policy. It’s in the title: America First.

Now, for better or worse, the targeted killing of Qassem Soleimani, Iran’s response and the subsequent fallout may make US foreign policy towards Iran and the US role in the Middle East a central issue for the 2020 US elections. As it comes just ahead of the Democratic presidential primaries, voters will be looking to the candidates to differentiate their foreign policy experience and proposals for America’s Middle East policy.

To President Donald Trump, Soleimani’s assassination represents a campaign promise kept to confront Iran’s aggression.

The Trump administration initially justified the action by citing intelligence of an imminent threat to US personnel and targets, but after Defense Secretary Mark Esper called this into question, Trump tweeted that ‘it doesn’t really matter because of [Soleimani’s] horrible past’. Ultimately, Trump’s message, on the campaign trail and any general debate stage he agrees to be on, is that he has overseen a new national security strategy for Iran.

Soleimani’s removal from the Iranian calculus is just a part of this broader policy, which also includes neutralizing the Iranian government’s destabilizing influence in the Middle East, denying Iran and especially the Islamic Revolutionary Guard Corps’ access to funding for its malign activities, and rallying the international community against domestic human rights violations and unjust detentions.

To counter Trump, Democrats and democratic presidential candidates would be best-served by offering a simple argument that too links domestic interests and foreign policy: the killing of Soleimani and Trump’s national security strategy for Iran have not made the US or its interests safer.

Iran’s ballistic missile attack on US forces in Iraq, which Iran’s Supreme Leader Ayatollah Ali Khamenei called a ‘slap in the face’ for the US, makes the risks to US assets and personnel abundantly clear. Even if Iran reverts entirely to covert, proxy efforts to counter US interests, the current US–Iran tensions remain unresolved and will likely continue to persist through the 2020 elections in November.

As a matter of the first order, Soleimani was replaced by his deputy Brigadier General Esmail Ghaani within a day of the former’s death, with Khamenei saying that the Quds Force will be ‘unchanged’.

At the second order, Iraq’s parliament voted in favour of a nonbinding resolution to rescind the invitation to US forces, which led Trump to threaten sanctions and demands for reimbursement. Whether US troops will ultimately leave Iraq (following a ‘mistaken’ report that the US was preparing to depart) remains to be seen, but the destabilization of the US military presence in Iraq fulfils a key Iranian objective.

In the interim, the US-led coalition in Iraq and Syria fighting ISIS announced that it would at least temporarily cease its counterterrorism efforts to instead fortify its outposts and prepare for Iranian retaliation, opening a wider door for the resurgence of the terror group.

By arguing that the US, its troops and interest have not been made safer by Trump’s Middle East policy – from withdrawing from the Iran nuclear deal to the imposition of a ‘maximum pressure campaign’ to Soleimani’s killing – Democrats will be able to point to every post-Soleimani US injury, death, regional terrorism attack, asset compromise, cyberattack and shipping disruption as evidence.

Democratic presidential candidates also ought to be explicit about how they plan to manage tensions with Iran – strategic, diplomatic and military – particularly their position on the future of the nuclear deal.

Iran has made clear that the path to de-escalation is through sanctions relief. Asserting leverage need not always involve taking away all of your counterparty’s options (‘maximum pressure’). It also involves knowing what your adversary wants (sanctions relief) and showing a willingness to offer it (especially where it means less to you) in exchange for something of greater worth (avoiding war/a non-nuclear Iran).

Clarity around future policy of a potential Democratic president may bring de-escalation forward in a way that Trump’s statement of Iran standing down are unlikely to do.

In the face of multiple competing pressures, most especially intense pressure by the US president and Secretary of State Mike Pompeo, the UK government has carved out an independent choice on the role that Huawei will play in its 5G mobile networks. Announced just days before the UK exited the European Union, a move designed to allow the UK to reclaim its sovereignty, this was a model example of a sovereign decision, but one that carries risk and will create ongoing uncertainty.

The government’s assessment is that this will bolster Britain’s economic competitiveness through a rapid rollout of its 5G mobile network while staving off pressure from the United States and economic retaliation from China.

Britain’s decision treads a cautious line. The effort to balance the drive for competitiveness, the imperatives of national security and, especially, to appease while not appearing to appease America, has meant that the UK faces multiple pressures just as it seeks to forge an independent political future. So far, the UK government has handled these pressures artfully.

After months of intense scrutiny that at times looked like prevarication, and at other times looked a lot more contentious, the UK has decided to restrict Huawei’s access to a maximum of 35% of the market share of what it argues is the non-core part of its 5G mobile networks, and to enforce a total ban on Huawei’s access to the core.  

But no one should rest easy with the current choice. The UK has been divided internally on this decision, even among those on its National Security Council who have had privileged access to the intelligence offered by GCHQ. As the UK’s decision loomed, Tom Tugendhat, chair of the House of Commons Foreign Affairs Committee, cited Huawei’s connection to China’s intelligence services and its police state in Xinjiang and asked ‘is the risk worth it?’.

This division created latitude for the Johnson government to stake out its own position. But it also suggests that when it comes to national security, the case is not clear.  

The US response is more puzzling. Donald Trump and Pompeo have been coming down hard on the UK. But in the lead up to the UK’s decision, US Treasury Secretary Steven Mnuchin struck a much more nuanced tone, at least on the public record.

Despite weeks of pressure by Trump and Pompeo leading up to the announcement, the UK’s Huawei decision has so far failed to make headlines in the US, or garner much of an official response.

In an oped published in the Financial Times just days after the UK’s decision, acting US Assistant Secretary of Defense David Helvey took a strong line on China, calling for transatlantic unity and stressing the comprehensive nature of the competition that China presents. But he refrained from any specific mention of the UK’s announced decision. 

Given the previous US threat that allowing Huawei access would compromise future US–UK intelligence sharing and undermine the prospect for a free trade deal, this relatively muted response is surprising. Few among US national security experts have diverged from the view that Huawei presents a singular threat to national security.

This suggests one of two things: either that, even among those in the US who agree about the threat that Huawei presents for national security, opinion differs on how to deal with this threat; or, that America has conceded to the UK’s choice, even if it is a different position to its own.

What comes next is less certain. Now that Boris Johnson’s decision has been announced, the US has good reason to lay low. Restricting US–UK intelligence is a hollow threat: the US is a major beneficiary of this relationship and any attempt to unravel it would be costly for both parties.

The same is true of a future US–UK free trade deal, from which the US will most certainly reap substantial benefits, politically as well as economically.

The risk for the United States, of course, is that if it does not follow through, future threats to retaliate against the UK’s sovereign choices will become increasingly meaningless. And President Trump is not just any president. The current quiet could quickly be reversed if he sees a reason to make an example of the UK to signal to other countries currently debating their position on Huawei that proceeding will carry significant penalties.

The question remains whether in forging ahead, but with elements of caution, Britain has made the right decision. If the measure of success is political independence befitting the moment of Britain’s historic exit from the European Union, then the answer would appear to be yes. National security is an entirely different matter, and on this the debate is not over.

The outbreak of popular discontent in Chile in October of last year caught many observers by surprise. What began as a protest against a metro fare hike has transformed into widespread rejection of the economic and political model in place since the return to democracy in 1990, accompanied with unprecedented violence which raises questions about the state's ability to maintain rule of law. 

Professor Andrés Velasco, Dean of the School of Public Policy at the LSE, and Dr Robert Funk, Assistant Professor of Political Science at the University of Chile will join us for a discussion on the causes of the current protest.

What are the prospects for reform and a return to normality? Is this the end of the much-lauded Chilean model?

The US and China have entered into an increasingly confrontational relationship over trade and technology. This may force Europe to make difficult choices between the two economic superpowers – or perform a balancing act. Although the recent US-China phase-1 trade deal has eased the relationship for now, the trade and technology tensions are a structural issue and are likely to persist.

The debate over Huawei’s participation in 5G networks is an example of how the UK and other countries may face competing priorities in economic, security and foreign policy. Can Europe avoid a binary choice between the US and China? Is it possible for the EU to position itself as a third global power in trade, technology and standard-setting? What strategies should Europeans adopt to keep the US and China engaged in the rules-based international order and what does the future hold for trade multilateralism?

Sir Simon Fraser will join us for a discussion on Europe’s future role between the US and China. Sir Simon is Managing Partner of Flint Global and Deputy Chairman of Chatham House. He previously served as Permanent Secretary at the Foreign and Commonwealth Office (FCO) and Head of the UK Diplomatic Service from 2010 to 2015. Prior to that he was Permanent Secretary at the UK Department for Business, Innovation and Skills. He has also served as Director General for Europe in the FCO and Chief of Staff to European Trade Commissioner Peter Mandelson.

We would like to take this opportunity to thank founding partner AIG and supporting partners Clifford Chance LLP, Diageo plc, and EY for their generous support of the Chatham House Global Trade Policy Forum.

There are two well-established ideas in trade. Individually, they are correct. Combined, they can lead to a conclusion that is unfortunately wrong.

The first idea is that, across a range of economic sectors, the EU and the US have been engaged in a battle to have their model of regulation accepted as the global one, and that the EU is generally winning.

The second is that governments can use their regulatory power to extend strategic and foreign policy influence.

The conclusion would seem to be that the EU, which has for decades tried to develop a foreign policy, should be able to use its superpower status in regulation and trade to project its interests and its values abroad.

That’s the theory. It’s a proposition much welcomed by EU policymakers, who know they are highly unlikely any time soon to acquire any of the tools usually required to run an effective foreign policy.

The EU doesn’t have an army it can send into a shooting war, enough military or political aid to prop up or dispense of governments abroad, or a centralized intelligence service. Commission President Ursula von der Leyen has declared her outfit to be a ‘geopolitical commission’, and is casting about for any means of making that real.

Through the ‘Brussels effect’ whereby European rules and standards are exported via both companies and governments, the EU has indeed won many regulatory battles with the US.

Its cars, chemicals and product safety regulations are more widely adopted round the world than their American counterparts. In the absence of any coherent US offering, bar some varied state-level systems, the General Data Protection Regulation (GDPR) is the closest thing the world has to a single model for data privacy, and variants of it are being adopted by dozens of countries.

The problem is this. Those parts of global economic governance where the US is dominant – particularly the dollar payments system – are highly conducive to projecting US power abroad. The extraterritorial reach of secondary sanctions, plus the widespread reliance of banks and companies worldwide on dollar funding – and hence the American financial system – means that the US can precisely target its influence.

The EU can enforce trade sanctions, but not in such a powerful and discriminatory way, and it will always be outgunned by the US. Donald Trump could in effect force European companies to join in his sanctions on Iran when he pulled out of the nuclear deal, despite EU legislation designed to prevent their businesses being bullied. He can go after the chief financial officer of Huawei for allegedly breaching those sanctions.

By contrast, the widespread adoption of GDPR or data protection regimes inspired by it may give the EU a warm glow of satisfaction, but it cannot be turned into a geopolitical tool in the same way.

Nor, necessarily, does it particularly benefit the EU economy. Europe’s undersized tech sector seems unlikely to unduly benefit from the fact that data protection rules were written in the EU. Indeed, one common criticism of the regulations is that they entrench the power of incumbent tech giants like Google.

There is a similar pattern at work in the adoption of new technologies such as artificial intelligence and the Internet of Things. In that field, the EU and its member states are also facing determined competition from China, which has been pushing its technologies and standards through forums such as the International Telecommunication Union.

The EU has been attempting to write international rules for the use of AI which it hopes to be widely adopted. But again, these are a constraint on the use of new technologies largely developed by others, not the control of innovation.

By contrast, China has created a vast domestic market in technologies like facial recognition and unleashed its own companies on it. The resulting surveillance kit can then be marketed to emerging market governments as part of China’s enduring foreign policy campaign to build up supporters in the developing world.

If it genuinely wants to turn its economic power into geopolitical influence – and it’s not entirely clear what it would do with it if it did – the EU needs to recognize that not all forms of regulatory and trading dominance are the same.

Providing public goods to the world economy is all very well. But unless they are so particular in nature that they project uniquely European values and interests, that makes the EU a supplier of useful plumbing but not a global architect of power.

On the other hand, it could content itself with its position for the moment. It could recognize that not until enough hard power – guns, intelligence, money – is transferred from the member states to the centre, or until the member states start acting collectively, will the EU genuinely become a geopolitical force. Speaking loudly and carrying a stick of foam rubber is rarely a way to gain credibility in international relations.

This article is part of a series of publications and roundtable discussions in the Chatham House Global Trade Policy Forum.

The end of 2018 was a monumental year for Latin America’s two biggest economies. In December 2018, Andrés Manuel López Obrador (AMLO) was inaugurated as Mexico’s 58th president. The following month saw another political shift further south, as Jair Bolsonaro became Brazil’s 38th president. While sitting on opposite ends of the political spectrum, both AMLO and Bolsonaro were considered to be political outsiders and have upended the status quo through their election to office. 

To what extent does the election of AMLO in Mexico and Bolsonaro in Brazil represent a shift in those countries’ definitions of national interest and foreign policy priorities? How will this affect these states’ policies regarding international commitments and cooperation on issues such as human rights, environment and climate change, migration, and trade? To what extent do possible shifts reflect changing domestic opinions?  Will any changes represent a long-term shift in state priorities and policies past these administrations?

The WTO Ministerial Conference in June 2020 presents a critical opportunity to move ahead on better alignment of trade and environmental sustainability objectives, policymaking and governance. In light of the challenges facing the WTO, meaningful efforts to address environmental sustainability would also help to reinvigorate the organization and strengthen its relevance. 

In this context, the meeting aims to advance discussion on two questions: How can the multilateral trade system better contribute to meeting the UN Sustainable Development Goals and the Paris climate goals? What priorities and tangible outcomes on trade and environmental sustainability should be advanced at the WTO Ministerial Conference in Nur Sultan in June and beyond?

The event will be hosted by the US and the Americas Programme and the Hoffmann Centre for Sustainable Resource Economy at Chatham House in partnership with both the Global Governance Centre and the Centre for Trade and Economic Integration at the Graduate Institute, Geneva.

We gratefully acknowledge the financial support for this event from the Chatham House Global Trade Policy Forum’s founding partner AIG and supporting partners Clifford Chance LLP, Diageo plc and EY, and on the Graduate Institute side, from the government of Switzerland.

The Democratic Party’s struggle for its future policy direction is evident this election season. The primary results in Iowa and New Hampshire, narrow first- and second-place finishes for Senator Bernie Sanders (a progressive) and former South Bend mayor Pete Buttigieg (a moderate), were just two indicators. During Wednesday night’s debate in Las Vegas, the split became even more obvious.

The six candidates onstage clashed on ideology (socialism and capitalism, progressivism and centrism) as well as policy (healthcare, climate change, fossil fuels, criminal justice, China). Buttigieg made plain the stakes for Democrats, saying, 'We’ve got to wake up as a party.'

If a Democratic candidate is elected to be the United States’ 46th president on 3 November, it will be despite this unresolved intra-party struggle.

One lesson the Democratic Party has taken from the 2018 midterm elections is that running candidates across the ideological spectrum is a winning formula.

It is easy to see how they came to this conclusion following the 2016 presidential and 2018 Congressional election experiences. In 2016, the favoured candidate status of former secretary of state Hillary Clinton deterred other aspirants from entering the Democratic primary ahead of a general election she went on to lose to Republican Donald Trump. In 2018, progressive and moderate centrist candidates, both first-timers and incumbents, ran and Democrats retook leadership in the House of Representatives with a 235-seat majority.

But what if this conclusion was noise and not the signal?

The Democratic National Committee (DNC) set the rules for the 2020 election based on the theory that by allowing an inclusive field (more than two dozen candidates entered the presidential race) the campaign processes, including debates, caucuses and primaries, would ultimately identify the most robust, representative candidate to go up against Donald Trump. Perhaps, and somewhat ironically, the 2016 Republican primary process, which involved a wide field culled by Trump’s unexpected success, informed the DNC’s reforms. And while very nice as a hypothesis of Bayesian updating, what has unfolded instead is a scattershot four-way — at times even five-way — race.

In the midst of this party divide, whoever ends up being the Democratic nominee will likely not represent the views of some meaningful proportion of the Democratic base. While healthcare remains the top issue across the Democratic electorate, there are those (candidates and voters) who want a single-payer option for all without a private insurance option and those who want to expand healthcare access while maintaining private insurers. Likewise, on foreign policy, there are those who link US trade policy with protecting American workers and who would therefore continue to use tariffs as a key trade policy, as well as those critical of Trump’s reliance on tariffs.

Compare that with the current state of the Republican Party. Trump’s approval with Republicans is in the high 80s, sometimes even low 90s, and after all but one Republican senator voted to acquit him in the Senate impeachment trial, the party is undeniably Trump’s. A sure sign is the historic turnout for Trump in his essentially uncontested Iowa and New Hampshire primaries.

Their own divisions pose a number of risks, then, for Democrats heading into November’s general election. The first one relates to vulnerabilities arising out of the primary process itself. If the fractures emerging from Iowa and New Hampshire persist, the likelihood of a quick wrap-up of the Democratic primary by April reduces, and the possibility of a contested Democratic convention in July increases (even if from a low base). While exciting television and Twitter fodder, a lengthy primary positions Democrats to go into the fall facing questions of party disunity behind the eventual nominee.

Although complicated to demonstrate empirically, some work has been done to understand whether the protracted 2016 Democratic primary and Sanders’ slow support for Democratic nominee Clinton in 2016 played a part in her defeat and Trump’s electoral success. A delayed general election campaign for the eventual Democratic nominee in 2020 almost certainly advantages President Trump’s money machine, which reportedly has more than twice as much on hand as then-president Barack Obama had going into his 2012 re-election. Further, unlike 2016, which was an open-seat election for the presidency, in 2020 Trump will have a demonstrated incumbent advantage.

The Democratic Party’s succession battle also raises risks around general election turnout. If Sanders is the party’s nominee, Biden or Buttigieg’s constituency may not come out to vote for him. More worrisome for Democrats, if Sanders is the party’s nominee then centrist voters, including those representing the finance industry, may peel off and vote for Trump, who has overseen economic expansion and record unemployment rates following the 2017 tax overhaul and various deregulations.

Alternatively, if Biden, Buttigieg or former mayor Michael Bloomberg become the nominee, Sanders’ many loyal supporters are likely to feel their policy priorities are not represented. And if those voters stay home because the Democratic nominee is not promising a political revolution, evidence suggests that depressed turnout levels may favour Republicans.

A third political peril relates to the business of legislating after the election. If despite the potential pitfalls a Democratic candidate manoeuvres and manages to build a winning coalition on 3 November, they will face the reality of legislative politics, which over the last 10 years have been defined by policy gridlock. Obama managed to get Obamacare through both Democratic-majority congressional chambers, but presided over divided chambers for the remainder of his term. Similarly, Trump’s major legislative accomplishment — the 2017 tax overhaul — was a result of Republican control in both the House of Representatives and the Senate.

A Democratic president will have to make progress on his or her agenda given not only the typical Republican-Democrat divide in Congress, but also facing potential raw divisions within the Democratic Party itself. In such a scenario, a Democratic administration may be tempted to take an expansive view of the president’s authority as we have seen under Trump, including relying on executive actions (tariffs and sanctions) on foreign policy.

The Democratic National Convention in Milwaukee, Wisconsin, beginning 13 July, and the party platform crafted over those four days present an essential opportunity to resolve the party’s divisions before November. If left unchecked, the party might find that its ex ante strategy for the 2020 Democratic primary ends in Trump’s re-election.

This article was originally published in the Independent.

Trade and investment between the UK and Latin America is woefully underdeveloped. Latin America’s agricultural powerhouses Brazil and Argentina only accounted for a total of 1.6% of the UK’s agricultural market across eight sectors in 2018, all of those areas in which Argentina and Brazil have substantial comparative advantages. 

Conversely, UK exports to the large Latin American economies remain far below their potential.  To cite a few examples, in 2018 in the electrical equipment sector, the UK only exported $95.7 million of those products to Brazil, making the ninth largest economy in the world only the 42nd export market for those goods from the UK; Mexico only imported $91.4 million of UK-made electrical goods, placing it directly behind Brazil as UK’s market for those goods.

As we look to the future, any improvement to the relationship will depend on two factors: 1) how the UK leaves the EU and 2) whether Latin American agricultural producers can improve their environmental practices and can meet the production standards established by the EU and likely maintained by a potential post-Brexit Britain.

In the first meeting of the working group,  Chatham House convened a range of policymakers, practitioners and academics to explore this topic in depth, identify the key issues driving this trend, and begin to consider how improvements might best be made. Subsequent meetings will focus on specific sectors in commerce and investment.

We would like to thank BTG Pactual, Cairn Energy plc, Diageo, Equinor, Fresnillo Management Services, HSBC Holdings plc and Wintershall Dea for their generous support of the Latin America Initiative.

As coronavirus spreads across the globe, states grapple to find the ideal strategy for coping with the global pandemic. And, in China, Singapore, South Korea, the US, the UK, and Europe, divergent policies are a product of state capacity and legal authority, but they also reveal competing views about the optimal role of centralized state authority, federalism, and the private sector.

Although it is too soon to know the longer-term effects, the apparent capacity of centralized state authority in China, South Korea and Singapore to respond effectively and rapidly is making headlines. In the United States, the opposite has been true. 

America’s response is being shaped by its federal structure, a dynamic private sector, and a culture of civic engagement. In the three weeks since the first US case of coronavirus was confirmed, state leaders, public health institutions, corporations, universities and churches have been at the vanguard of the nation’s effort to mitigate its spread.

Images of safety workers in hazmat suits disinfecting offices of multinational corporations and university campuses populate American Facebook pages. The contrast to the White House effort to manage the message, downplay, then rapidly escalate its estimation of the crisis is stark.

Bewildering response

For European onlookers, the absence of a clear and focused response from the White House is bewildering. By the time President Donald Trump declared a national emergency, several state emergencies had already been called, universities had shifted to online learning, and churches had begun to close.

By contrast, in Italy, France, Spain and Germany, the state has led national efforts to shutter borders and schools. In the UK, schools are largely remaining open as Prime Minister Boris Johnson has declared a strategy defined by herd immunity, which hinges on exposing resilient populations to the virus.

But America has never shared Europe’s conviction that the state must lead. The Center for Disease Control and Prevention, the leading national public health institute and a US federal agency, has attempted to set a benchmark for assessing the crisis and advising the nation. But in this instance, its response has been slowed due to faults in the initial tests it attempted to rollout. The Federal Reserve has moved early to cut interest rates and cut them again even further this week.

But states were the real first movers in America’s response and have been using their authority to declare a state of emergency independent of the declaration of a national emergency. This has allowed states to mobilize critical resources, and to pressure cities into action. After several days delay and intense public pressure, New York Governor Andrew Cuomo forced New York City Mayor Bill de Blasio to close the city’s schools.

Declarations of state emergencies by individual states have given corporations, universities and churches the freedom and legitimacy to move rapidly, and ahead of the federal government, to halt the spread in their communities.

Washington state was the first to declare a state of emergency. Amazon, one of the state’s leading employers, quickly announced a halt to all international travel and, alongside Microsoft, donated $1million to a rapid-response Seattle-based emergency funds. States have nudged their corporations to be first movers in the sector’s coronavirus response. But corporations have willingly taken up the challenge, often getting ahead of state as well as federal action.

Google moved rapidly to announce a move allowing employees to work from home after California declared a state of emergency. Facebook soon followed with an even more stringent policy, insisting employees work from home. Both companies have also met with World Health Organization (WHO) officials to talk about responses, and provided early funding for WHO’s Solidarity Response Fund set up in partnership with the UN Foundation and the Swiss Philanthropy Foundation.

America’s leading research universities, uniquely positioned with in-house public health and legal expertise, have also been driving preventive efforts. Just days after Washington declared a state of emergency, the University of Washington became the first to announce an end to classroom teaching and move courses online. A similar pattern followed at Stanford, Harvard, Princeton and Columbia - each also following the declaration of a state of emergency.

In addition, the decision by the Church of the Latter Day Saints to cancel its services worldwide followed Utah’s declaration of a state of emergency.

The gaping hole in the US response has been the national government. President Trump’s declaration of a national emergency came late, and his decision to ban travel from Europe but - at least initially - exclude the UK, created uncertainty and concern that the White House response is as much driven by politics as evidence.

This may soon change, as the House of Representatives has passed a COVID-19 response bill that the Senate will consider. These moves are vital to supporting state and private efforts to mobilize an effective response to a national and global crisis.

Need for public oversight

In the absence of greater coordination and leadership from the centre, the US response will pale in comparison to China’s dramatic moves to halt the spread. The chaos across America’s airports shows the need for public oversight. As New York State Governor Cuomo pleaded for federal government support to build new hospitals, he said: ‘I can’t do it. You can’t leave it to the states.'

When it comes to global pandemics, we may be discovering that authoritarian states can have a short-term advantage, but already Iran’s response demonstrates that this is not universally the case. Over time, the record across authoritarian states as they tackle the coronavirus will become more apparent, and it is likely to be mixed.

Open societies remain essential. Prevention requires innovation, creativity, open sharing of information, and the ability to inspire and mobilize international cooperation. The state is certainly necessary, but it is not sufficient alone.

This event is part of the Inaugural Virtual Roundtable Series on the US, Americas and the State of the World and will take place virtually only. Participants should not come to Chatham House for these events.

This event is part of the Inaugural Virtual Roundtable Series on the US, Americas and the State of the World and will take place virtually only.  Participants should not come to Chatham House for these events.

This event is part of the Inaugural Virtual Roundtable Series on the US, Americas and the State of the World and will take place virtually only.  Participants should not come to Chatham House for these events.

This event is part of the Chatham House Global Trade Policy Forum. We would like to take this opportunity to to thank founding partner AIG and supporting partners Clifford Chance LLP, Diageo plc and EY for their generous support of the forum. 

This event is part of the Inaugural Virtual Roundtable Series on the US, Americas and the State of the World and will take place virtually only. Participants should not come to Chatham House for these events.

This event is part of the Inaugural Virtual Roundtable Series on the US, Americas and the State of the World and will take place virtually only.  Participants should not come to Chatham House for these events.

The COVID-19 pandemic highlights the absence of US global leadership. Michèle Flournoy talks with Dr Leslie Vinjamuri about the impact of COVID-19 on US domestic priorities and foreign policy commitments.

Flournoy discusses current US strategy towards China and the Middle East and how this might change under a Democratic administration.

This event is part of the Inaugural Virtual Roundtable Series on the US, Americas and the State of the World and will take place virtually only.

This event is part of the Chatham House Global Trade Policy Forum. We would like to take this opportunity to thank founding partner AIG and supporting partners Clifford Chance LLP, Diageo plc, and EY for their generous support of the forum.

This event is part of the Inaugural Virtual Roundtable Series on the US, Americas and the State of the World and will take place virtually only.