Multilateralism in Peril: The Uneasy Triangle of the US, China and the EU 9780367765224, 9780367765231, 9781003167358

Table of contents :
Cover
Half Title
Series Page
Title Page
Copyright Page
Table of Contents
List of Contributors
Acknowledgements
Introduction: Conceptualising Multilateralism amidst Shifting Relations between the United States, the European Union and China
Part 1 Global Multilateralism: The UN, Its Specialised Agencies and Related Regimes
Chapter 1 Cultural Heritage as the New Standard of Civilisation? Engagement with UNESCO from Rejection to Aggressive Embrace and the Perpetuation of Empire
Chapter 2 The United States, China and the European Union at the UN Human Rights Council: Trilateral Dynamics over International Human Rights Norms, Institutions and Politics
Chapter 3 Pandemic Shifts? Covid-19 and the Geopolitics of Disease
Chapter 4 The Five Permanent Members of the UN Security Council and Multilateral Humanitarian Legal Regimes
Chapter 5 Multilateralism in Law of the Sea and Its Implications for the South China Sea
Part 2 Multilateral Structures for Economic, Social and Environmental Cooperation
Chapter 6 Apocalypse Now: The WTO Dispute Settlement System in the Times of Trump
Chapter 7 The Multilateral Trade and Monetary System in Peril: Can China Replace the US at the IMF?
Chapter 8 International Labour Standards (ILS) as a Sine Qua Non of Bilateral and Multilateral Governance of International Trade: Increasing Potential for Conflict?
Chapter 9 A New Page for EU-China Energy Relations? The Impact of Trump’s Withdrawal from Paris Agreement on Cooperation and Competition in Energy Transition
Part 3 Multilateralism and Regional Security
Chapter 10 All Dressed up with Nowhere to Go: The ASEAN Regional Forum, Major Power Disinterest and the Limits of Multilateral Security Cooperation in East Asia
Chapter 11 Sticking to the Big Brother: An Analysis of the EU’s Response to Revitalised US-North Korea Relations
Chapter 12 Failing Forward: US Withdrawal and the Increasing Role of the EU and China vis-à-vis the Iran Nuclear Deal
Chapter 13 The Middle East Peace Process: Changing US Policies and EU and Chinese Involvement
Conclusion: Multilateralism in Peril?
Index

Citation preview

Multilateralism in Peril

This collaborative work brings together international lawyers and political scientists to explore whether and how the retreat of the US, and the simultaneous rise of China, affect the dynamics of multilateralism to which the EU claims to adhere. It focuses on the trilateral interaction between these three actors and the policy impact their interactions have in specific multilateral settings and examines cooperation, competition and confrontation of these three actors in key international organisations such as the WTO, UNESCO, Human Rights Council and UNCLOS, NATO, the ASEAN Regional Forum and the WHO in times of Covid-19. It also addresses their approaches and attitudes toward international humanitarian norms and the peace process in the Middle East. This book offers an insightful exploration of the future of multilateralism under the impact of the Trump administration and probes the future of the liberal international order. It will provide excellent reading material on current affairs for both graduate and undergraduate students in international law and international relations, in particular for courses relating to international organisation, multilateralism or the US, China and the EU in international affairs. For experienced researchers the book proposes in-depth studies that relate to major debates in the disciplines of international law and international relations. Chien-Huei Wu is Research Professor in the Institute of European and American Studies (IEAS), Academia Sinica, Taipei, Taiwan, and currently coordinates the US-Taiwan-China research group. Frank Gaenssmantel is Assistant Professor at the Department of International Relations and International Organisation at the University of Groningen, the Netherlands, since 2010. He previously held a position as Research Fellow at the Centre for Advanced Studies on Contemporary China (Centro di Alti Studi sulla Cina Contemporanea, CASCC) in Turin. Francesco Giumelli is Associate Professor in the Department of International Relations and International Organization at the University of Groningen, the Netherlands. He was previously Jean Monnet Fellow at the European University Institute and Fellow at the Kroc Institute of Notre Dame University.

Global Governance Series Editor: John J. Kirton, University of Toronto, Canada

Global governance is growing rapidly to meet the compounding challenges of a globalized 21st-century world. Many issues once dealt with largely at the local, national or regional level are now going global, in the economic, social and political-security domains. In response, new and renewed intergovernmental institutions are arising and adapting, multilevel governance is expanding, and sub-national actors are playing a greater role, creating complex combinations and private-partnerships to this end. This series focuses on the new dynamics of global governance in the 21st century by: • • •

•

Addressing the changes in the structure, operation and impact of individual intergovernmental institutions, above all their innovative responses to the growing global challenges they confront. Exploring how they affect, are affected by and relate to non-state actors of global relevance and reach. Examining the processes of cooperation, competition and convergence among international institutions and the many global governance gaps where global challenges such as terrorism, transnational crime and energy do not confront powerful international institutions devoted to their control. Dealing with how global institutions govern the links among key issues such as climate change and health.

In all cases, the series focuses on the central questions of how global governance institutions and processes generate the effective, legitimate, accountable results required to govern today’s interconnected, complex, uncertain and crisis-ridden world. For more information about this series, please visit: https://www.routledge. com/Global-Governance/book-series/ASHSER1420 Institutionalised Summits in International Governance Promoting and Limiting Change Daniel Odinius Reconfiguring the Global Governance of Climate Change John Kirton, Ella Kokotsis and Brittaney Warren Multilateralism in Peril The Uneasy Triangle of the US, China and the EU Edited by Chien-Huei Wu, Frank Gaenssmantel and Francesco Giumelli

Multilateralism in Peril The Uneasy Triangle of the US, China and the EU

Edited by Chien-Huei Wu, Frank Gaenssmantel and Francesco Giumelli

First published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 selection and editorial matter, Chien-Huei Wu, Frank Gaenssmantel and Francesco Giumelli; individual chapters, the contributors The right of Chien-Huei Wu, Frank Gaenssmantel and Francesco Giumelli to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-76522-4 (hbk) ISBN: 978-0-367-76523-1 (pbk) ISBN: 978-1-003-16735-8 (ebk) DOI: 10.4324/9781003167358 Typeset in Times New Roman by Deanta Global Publishing Services, Chennai, India

Contents

List of Contributors Acknowledgements Introduction: Conceptualising Multilateralism amidst Shifting Relations between the United States, the European Union and China

viii xiii

1

FRANK GAENSSMANTEL, FRANCESCO GIUMELLI AND CHIEN-HUEI WU

PART 1

Global Multilateralism: The UN, Its Specialised Agencies and Related Regimes

19

1 Cultural Heritage as the New Standard of Civilisation? Engagement with UNESCO from Rejection to Aggressive Embrace and the Perpetuation of Empire

21

LUCAS LIXINSKI

2 The United States, China and the European Union at the UN Human Rights Council: Trilateral Dynamics over International Human Rights Norms, Institutions and Politics

36

YU-JIE CHEN

3 Pandemic Shifts? Covid-19 and the Geopolitics of Disease

53

NADINE VOELKNER

4 The Five Permanent Members of the UN Security Council and Multilateral Humanitarian Legal Regimes LIJIANG ZHU

70

vi

Contents

5 Multilateralism in Law of the Sea and Its Implications for the South China Sea

89

CHEN-JU CHEN

PART 2

Multilateral Structures for Economic, Social and Environmental Cooperation 6 Apocalypse Now: The WTO Dispute Settlement System in the Times of Trump

107 109

LUKASZ GRUSZCZYNSKI

7 The Multilateral Trade and Monetary System in Peril: Can China Replace the US at the IMF?

126

SALIHA METINSOY

8 International Labour Standards (ILS) as a Sine Qua Non of Bilateral and Multilateral Governance of International Trade: Increasing Potential for Conflict?

152

HERMAN VOOGSGEERD

9 A New Page for EU-China Energy Relations? The Impact of Trump’s Withdrawal from Paris Agreement on Cooperation and Competition in Energy Transition

167

YAROSLAVA MARUSYK

PART 3

Multilateralism and Regional Security

191

10 All Dressed up with Nowhere to Go: The ASEAN Regional Forum, Major Power Disinterest and the Limits of Multilateral Security Cooperation in East Asia

193

JA IAN CHONG

11 Sticking to the Big Brother: An Analysis of the EU’s Response to Revitalised US-North Korea Relations

210

FRANCESCO GIUMELLI

12 Failing Forward: US Withdrawal and the Increasing Role of the EU and China vis-à-vis the Iran Nuclear Deal AGHA BAYRAMOV AND MUSTAFA ALI SEZAL

227

Contents 13 The Middle East Peace Process: Changing US Policies and EU and Chinese Involvement

vii 243

MOR SOBOL

Conclusion: Multilateralism in Peril?

262

FRANK GAENSSMANTEL, FRANCESCO GIUMELLI AND CHIEN-HUEI WU

Index

275

List of Contributors

Agha Bayramov is lecturer at the Department of International Relations and International Organization of the University of Groningen, the Netherlands. His research interests are energy security, geopolitics, the Caspian Sea region, Nagorno-Karabakh, Eurasia and climate change. Chen-Ju Chen is currently Associate Professor in International Law jointly appointed by the College of Law and College of International Affairs at the National Chengchi University, Taiwan. Upon her doctoral studies in Hamburg, Germany, she returned to Taiwan for both research and teaching in the fields of public international law and the law of the sea. Chen’s interests focus on the law of the sea and inter-related fields, such as the sea and environment, the sea and trade, the sea and the EU, etc. In both Chinese and English, Chen’s papers have been published in relevant fields both in Taiwan and abroad. On these bases, Chen looks forward to strengthening and expanding her law of the sea and fisheries research in the near future. Yu-Jie Chen is an Assistant Research Professor at Institutum Iurisprudentiae of Academia Sinica, Taiwan, and an Affiliated Scholar at the US-Asia Law Institute of NYU School of Law, USA. Her research focuses on human rights and international law and relations, particularly in the context of China, Taiwan and China-Taiwan relations, including topics concerning China’s authoritarian political and legal system, China’s influence on the international human rights regime, human rights and rule of law issues in China-Taiwan relations and Taiwan’s interaction with international human rights norms. In addition to publishing in academic journals in the United States, Taiwan and Hong Kong, she also writes op-eds and takes part in public-facing discussions. Yu-Jie received her JSD and LLM degrees from NYU School of Law. She also holds an LLM and LLB from National Chengchi University, Taiwan. She was an inaugural Global Academic Fellow at the University of Hong Kong Faculty of Law (2019–2020). She has had extensive experience as a research scholar at the US-Asia Law Institute, NYU School of Law. Prior to that, she served as a researcher and advocate for the non-governmental organisation Human Rights in China. She earlier practiced in the Taipei-based international law firm Lee and Li.

List of Contributors

ix

Ja Ian Chong is Associate Professor of Political Science at the National University of Singapore. Chong’s work crosses the fields of international relations, comparative politics and political sociology, with a focus on security issues relating to China and East Asia. He follows the interplay of social movements, politics and foreign policy in East Asia closely. Chong was a 2019/2020 Harvard-Yenching Visiting Scholar, 2013 Taiwan Fellow, 2012/2013 East-West Center Asian Studies Fellow and 2008/2009 Princeton-Harvard China and the World Program fellow. He previously worked with the Centre for Strategic and International Studies in Washington, DC, and the Institute of Defence and Strategic Studies in Singapore. Chong’s work has appeared in a number of journals, edited volumes and newspapers, including the China Quarterly, European Journal of International Relations, International Security and Security Studies. He is author of External Intervention and the Politics of State Formation: China, Thailand, Indonesia – 1893–1952, Cambridge University Press, 2012, recipient of the 2013/2014 Best Book Award from the International Security Studies Section of the International Studies Association. He is currently working on projects examining the aggregate effects of middle and smaller power responses to major power competition on stability, learning and responses to coercion, as well as the political and social consequences of foreign influence operations. Frank Gaenssmantel is Assistant Professor at the Department of International Relations and International Organisation at the University of Groningen, the Netherlands, since 2010. He previously held a position as Research Fellow at the Centre for Advanced Studies on Contemporary China (Centro di Alti Studi sulla Cina Contemporanea, CASCC) in Turin and taught at the School of Advanced International and Area Studies at East China Normal University in Shanghai. His research interests include European and Chinese foreign policies, China-EU relations, foreign policy analysis and international trade relations. He received his PhD from the European University Institute (EUI) in Florence. Francesco Giumelli is Associate Professor in the Department of International Relations and International Organization at the University of Groningen, the Netherlands. He was previously Jean Monnet Fellow at the European University Institute and Fellow at the Kroc Institute of Notre Dame University. He is the author of The Success of Sanctions: Lessons Learned from the EU Experience (Routledge, 2013) and Coercing, Constraining and Signalling: Explaining UN and EU Sanctions after the Cold War (ECPR Press, 2011). He has published on sanctions, private military and security companies in the Journal of Common Market Studies, International Affairs, International Relations and International Peacekeeping. Beyond his work on sanctions, Francesco studies issues concerning the role of private actors in security and illicit trade. Lukasz Gruszczynski is Associate Professor (dr. habil.) of International Law at Kozminski University, Warsaw, Poland, and a Research Fellow at the Centre

x

List of Contributors for Social Sciences – Institute for Legal Studies, Budapest, Hungary. He earned his PhD from the European University Institute, Florence, Italy. In the past, he was a visiting researcher at the University of Michigan Law School, Lauterpacht Centre for International Law at the University of Cambridge (as Winiarski Fellow), Pazamany Peter Catholic University and the National University of Public Service in Budapest, as well as an intern at the Legal Affairs Division of the World Trade Organization. He regularly teaches EU law, public international law and international economic law at various Polish and foreign universities. Prof. Gruszczynski is the author of more than 70 publications, including 2 monographs with Oxford University Press. His current research focuses on international trade law and global health law and risk regulation. Prof. Gruszczynski is a Managing Co-Editor of the Polish Yearbook of International Law and an editor of the European Journal of Risk Regulation (CUP).

Lucas Lixinski is Professor at the Faculty of Law and Justice, UNSW Sydney, Australia. He holds a PhD in Law from the European University Institute, Florence, Italy, an LLM in Human Rights Law from Central European University, Budapest, Hungary, and an LLB from the Federal University of Rio Grande do Sul, Porto Alegre, Brazil. He publishes extensively across many areas of international law, particularly cultural heritage law and human rights law. He is the recipient of the American Society of International Law’s Certificate of Merit for his 2020 co-edited volume, a commentary on the UNESCO 2003 Convention for the Safeguarding of the Intangible Cultural Heritage. His latest book is Legalized Identities: Cultural Heritage Law and the Shaping of Transitional Justice (Cambridge University Press, 2021). Yaroslava Marusyk is PhD candidate and lecturer at the Department of International Relations and International Organization of the University of Groningen, the Netherlands. Her areas of expertise are energy security, geopolitics of energy transition, sustainability, climate change and global energy governance. In particular, she studies the impact of norms and values in energy security and energy transition discourses. From 2015 to 2017 she was a member of the organising committee of the Groningen Energy Summer School (GESS), an interdisciplinary summer school of the University of Groningen. Prior to moving to the Netherlands, Marusyk lived and worked in Guangzhou, China, for a few years where she acquired extensive teaching experience in various educational institutions of the Guangdong province. For more details, please visit her profile at www.rug.nl/staff/y.marusyk Saliha Metinsoy is Assistant Professor of International Political Economy at the International Relations and International Organization (IRIO) department at the University of Groningen, the Netherlands. Her research interests include International Monetary Fund programmes, domestic and international labour markets and migration. Her research has previously appeared in the Journal of European Public Policy (JEPP) and Global Perspectives among others. Her

List of Contributors

xi

teaching interests include quantitative methods, international organisations and politics of migration. Mustafa A. Sezal is lecturer and researcher at the Department of International Relations and International Organization, University of Groningen, the Netherlands. He received a PhD from the University of Groningen with his doctoral research focused on the philosophical and genealogical development of critical security schools with an emphasis on emancipation. Currently his research interests include critical security studies, European security and defence policy and international relations theories. Mor Sobol is Assistant Professor in the Department of Diplomacy and International Relations at Tamkang University, Taiwan, as well as an Affiliated Research Fellow at the European Union Centre in Taiwan (EUTW). He holds a BA in Government, Diplomacy and Strategy from Reichman University (Israel), an MA in European Studies from Hochschule Bremen (Germany) and a PhD in Politics from the University of Edinburgh (UK). Sobol worked as a Postdoctoral Fellow at the Institute of European and American Studies at Academia Sinica and served as an adjunct lecturer at various universities including Hochschule Bremen, Ming Chuan University and Yuan Ze University. His main research interests centre on European and Chinese foreign policy, Mediterranean politics, Taiwan/China/US–Israel relations and institutionalist theories. Recently, Sobol won a two-year research grant from Taiwan’s Ministry of Science and Technology to conduct research concerning the impact of the US-China-Taiwan strategic triangle on Taiwan’s foreign policy towards third countries. Nadine Voelkner is a researcher and Assistant Professor of International Relations at the Faculty of Arts of the Riksuniversiteit, Groningen, the Netherlands. As a researcher she focuses on the governance of infectious diseases in global health security, with a particular regional focus on Asia. Her work has been published in Security Dialogue, International Political Sociology, Global Society and elsewhere. Voelkner heads the Politics and Ecologies of Disease research unit (PED) and is an Aletta Research Fellow of the Groningen Centre for Health and Humanities and the Aletta Jacobs School of Public Health. Herman Voogsgeerd is Assistant Professor at the University of Groningen, in the Faculty of Arts (Department of International Relations and International Organisation) and in the Faculty of Law. His research interests include private authority in international political economy, international and EU labour law and regional integration and cooperation in Europe and East Asia. Chien-Huei Wu is Research Professor in the Institute of European and American Studies (IEAS), Academia Sinica, Taipei, Taiwan, and currently coordinates the US-Taiwan-China research group. He obtained his PhD in Law from the European University Institute, Florence, Italy, and specialises in international economic law and public international law. His research interests cover EU

xii List of Contributors external relations, US-China relations and comparative regionalism. He has held a number of visiting fellowship/professorships, including MPIL in Heidelberg and the Wilson Center in DC. He spoke before the European Parliament in 2018 and has just published Law and Politics on Export Restrictions: WTO and Beyond (CUP, 2021). Lijiang Zhu is Professor of International Law and Vice Dean of the School of International Law, China University of Political Science and Law. He holds a PhD from Law School, Peking University, China, an LLM from Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund University, Sweden, and an LLB from Law School, Peking University, China. He is currently the convenor of the interest group of international humanitarian law, the Asian Society of International Law, Vice Secretary-General of the Chinese Society of International Law, member of the Board of Editors of the Chinese Journal of International Law (published in English by OUP) and Vice Editor-in-Chief of the Chinese Yearbook of International Law (published in Chinese in China). He has published many articles and books on international law including international humanitarian law.

Acknowledgements

As editors of this volume we would like to express our gratitude to all contributors for the impressive research and writing efforts behind the chapters, and more generally for their energy and commitment. The project that led to this book greatly benefitted from a workshop at Academia Sinica in Taiwan which offered not only a chance to present and discuss initial research results, but more generally a pleasant context for stimulating scholarly exchange. Aside from the authors of the chapters in this volume, other persons also made important contributions to this event. We would like to thank Prof. Thomas Bruha of the University of Hamburg, for his inspiring keynote speech, Prof. Norman Y. Teng, Director of the Institute of European and American Studies at Academia Sinica, for the warm welcoming words, and all scholars who did not present but attended sessions and contributed to the debate. More generally, we are extremely grateful to the staff at Academia Sinica and the great efforts they made to ensure that everything was perfectly prepared and organised. We would also like to thank Academia Sinica for generous financial support, as well as the Centre of East Asian Studies Groningen for important contributions to covering travel costs. In the preparation of the book, Esther Liao of Academia Sinica played a critical role, as she ensured coherence in referencing and layout across all contributions, and we would like to thank her for this crucial support. Lastly, our gratitude also extends to Robert Sorsby and John Kirton at Routledge, whose input and guidance helped with getting the book ready for publication.

Introduction Conceptualising Multilateralism amidst Shifting Relations between the United States, the European Union and China Frank Gaenssmantel, Francesco Giumelli and Chien-Huei Wu Introduction Within just a few months of taking office in January 2017, the United States (US) administration under President Donald Trump started to implement policies that progressively distanced the US from many fora of multilateral cooperation. This meant that the US openly challenged the related rules or norms of habit; that severe tensions erupted with other participating states, including in some cases close allies; and that the US started to withdraw from several such multilateral cooperation schemes. Immediately after Donald Trump had been sworn into office, he signed an executive order to leave the Transpacific Partnership Agreement (TPP). In May 2017 he caused concern amongst US allies in the North Atlantic Treaty Organization (NATO) by refusing to confirm the traditional US commitment to European security and by aggressively scolding most other leaders for not paying their dues in the defence field (Wright 2017). On 1 June 2017 President Trump announced his intention to end US participation in the Paris Agreement of the United Nations (UN) Framework Convention on Climate Change. On 12 October 2017, the US withdrew from the United Nations Educational, Scientific and Cultural Organization (UNESCO) citing the “mounting arrears at UNESCO, the need for fundamental reform in the organization, and continuing anti-Israel bias at UNESCO”1 as reasons for this decision. In the trade sphere, the Trump administration started systematically blocking nominations for the Appellate Body of the World Trade Organization’s (WTO) Dispute Settlement Body in autumn 2017, with the result that since the end of 2020 it is not functioning any more as all of the seven seats set down in WTO treaties have become vacant. In 2018, the US started to implement a series of punitive tariffs on imports, both product-specific and country-specific, all of them quite visibly in violation of WTO rules.2 A large proportion of these measures were taken in accordance with Section 301 of the Trade Act of 1930, a key instrument of US unilateralism with which the US can threaten retaliation if the targeted country does not alter its trade behaviour or practices. This had not happened in almost 20 years, or since a panel of experts under the WTO’s Dispute Settlement Body had issued the report on US – Section 301 Trade Act in January 2000. DOI: 10.4324/9781003167358-1

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Gaenssmantel, Giumelli and Wu

In May 2018, President Trump also announced that the US would withdraw from the Iran Nuclear Deal. It had taken almost a decade of repeated attempts at consultations and negotiations to arrive at a complex agreement imposing limits on Iran’s nuclear programme, which was endorsed by a unanimous UN Security Council Resolution in 2015. In spring 2020, President Trump launched a series of attacks on the World Health Organization (WHO), accusing it of severely mishandling the Covid-19 pandemic and of being excessively close to China. In July of the same year, he communicated his intention to withdraw the US from this organisation as well. In June 2020, the US administration, with an executive order, decided to impose sanctions on the judges of the International Criminal Court (ICC) for its investigation on possible crimes committed by US forces in Afghanistan. The decision adopted in June led to the imposition of an asset freeze on Chief Prosecutor Fatou Bensouda and the Head of the Jurisdiction Complementarity and Cooperation Division, Phakiso Mochochoko, in addition to a blanket ban on travel to the US for all ICC personnel involved in the investigation of events involving US forces. In many ways, the aggressive stance towards multilateral institutions displayed by the Trump administration marked a break with previous practice of US foreign policy. Multilateralism has been a crucial feature of the US-led liberal international order, from its beginnings as the “Western” order in the direct aftermath of the Second World War to the post-Cold War era when it turned into a global order (Ikenberry 2009). However, the very success of “going global” carried with it the ferments of the current crisis, in particular the many challenges originating from the more fluid ideological divisions and its increased diversity (Ikenberry 2018). The emergence of other powerful players with their own preferences, which may be more or less in line with liberal norms but anyway usually different from those of the US, is one major source of tension in this regard (Calleo 1999, Kahler 2016, p. 62ff.). In light of this, it would be short-sighted to blame it all on a single person and his aides. In fact, frictions between the US and its most important counterparts within some of the established settings of multilateral cooperation, like the UN, the WTO or NATO, had been building up since long before Trump, and related uneasiness and discontent on the part of the US became visible (though admittedly on fewer occasions and with much less fury) under his predecessors as well, both Democrats and Republicans, and independently from the role multilateralism played in their official foreign policy discourses. Similarly, it is probably legitimate to expect a more conciliatory tone and a more constructive approach of the US under President Joe Biden, but many of the underlying tensions will continue to shape the interaction between the US and its international partners in the major multilateral fora. The purpose of this volume is to explore the complex interplay amongst the core actors of global politics in the context of multilateralism, and in particular how shifts with regard to the former can affect the institutions and dynamics of the latter. To capture the key developments in terms of international key players, we propose to focus on two other actors in addition to the US: the People’s Republic

Introduction 3 of China (PRC) and the European Union (EU). China has been a rising power, in virtually all possible senses of the term, for more than two decades, and it has combined an increasingly self-confident stance in international affairs (Yan 2014, Wang 2019; for a more critical discussion, see Johnston 2013) with a progressive embracing of most multilateral organisations, though admittedly in many cases with a more and more explicit agenda for change and reform (Johnston 2007, Nathan 2016, Wang 2015). The EU, by contrast, stands for a group of states that have been historically close to the US but forced, bon gré mal gré, to step out of the shadow of the lone superpower and reorient themselves on the evolving global stage since the end of the Cold War (Calleo 1999, Howorth 2011). As an actor in international affairs, the EU has placed great emphasis on multilateral processes, and it has used its resources for multilateral diplomacy as a tool for international influence (Maull 2005, p. 784, Cross 2018).

What Is Multilateralism? Multilateralism and multilateral institutions (in the broadest sense) are frequently referred to in academic publications, but explicit definitions or conceptual discussions of these notions are rare. Typically, the terms appear in the context of broader discussions, in particular on international order, global governance or foreign policy preferences of particular governments (Ikenberry 2009, Ikenberry 2011, Acharya 2018, Kahler 2010, 2016, Pisani-Ferry 2019, Gu 2017, Homolar 2012, Erforth 2020). Their meaning is mostly taken for granted. There have been elaborate efforts by leading scholars of international relations to explore how we should understand multilateral phenomena and ideas, but they date back to the early 1990s, i.e. the beginnings of a post-Cold War global multilateral structure largely built on the institutions set up in the preceding decades by the former Western bloc. In 1990, as one of the first, Robert O. Keohane proposed an “agenda for research” on multilateralism, for the purposes of which he defined multilateralism as “the practice of coordinating national policies in groups of three or more states, through ad hoc arrangements or by means of institutions” (Keohane 1990, p. 731). Much of this article is a revisitation of his earlier work on international institutions, and in particular international regimes, and its approach to the distinctive features of multilateralism does not go beyond the question of the number of states involved. Just two years later, in a seminal article, John Gerard Ruggie developed a more comprehensive analysis of the concept of multilateralism, which went beyond such a numerical perspective by claiming that “what is distinctive about multilateralism is not merely that it coordinates national policies in groups of three or more states … but that it does so on the basis of certain principles of ordering relations among those states” (Ruggie 1992, p. 567). Such principles are rooted in the indivisibility of common goods created through cooperation. In the case of collective security arrangements, for example, peace is indivisible, which entails the principle that an attack on one has to be seen as an attack on all. The indivisibility of a free trade system means that discrimination amongst members

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must be forbidden, as in the WTO through the most-favoured nation principle (Ruggie 1992, pp. 569–571). In addition, multilateralism is based on “diffuse reciprocity,” in the sense that “the arrangement is expected by its members to yield a rough equivalence of benefits in the aggregate and over time” (Ruggie 1992, p. 571). In Ruggie’s view these characteristics make multilateralism a “generic institutional form” that is “highly demanding,” and not all cooperative institutions involving three or more actors of international politics can be considered multilateral in this sense (Ruggie 1992, pp. 572–574). While conceptually coherent, this may create confusion, as some of the institutions scholars and practitioners alike are habitually referring to as multilateral might turn out, after close scrutiny on this basis, not to deserve that qualification, or only in part. A somewhat more pragmatic approach on this particular point was offered by James A. Caporaso, in the same volume of the same journal as Ruggie’s famous piece. Here Caporaso makes a clear distinction between the “institution of multilateralism” and the adjective “multilateral” as commonly used. Ruggie’s elements of indivisibility, generalised principles of conduct and diffuse reciprocity define the former, which Caporaso considers “a deep organizing principle of international life” (Caporaso 1992, p. 601). By contrast, the adjective “multilateral” is much broader and essentially about “cooperative activity among many countries” (Caporaso 1992, p. 603). Lisa Martin adopted a similar approach and was even more explicit in stating that “we see a great deal of variation in the degree to which actual [multilateral] organizations conform to the norms of multilateralism” (Martin 1992, p. 767). For the purposes of the present project this means that we can include a broad set of institutions that are multilateral in the numerical sense, as proposed originally by Keohane and then adapted by Caporaso and Martin, ranging from loose multilateral initiatives like the Six-Party Talks and subsequent efforts on the Korean peninsula to formal organisations like the WTO. The questions of what “principles ordering relations among states,” or generalised principles of conduct, are present in the discourse and practice of those institutions, to what extent they are specific and binding on participants, and whether they have undergone any change, will then be part of the in-depth analysis in the respective chapter. The stability of multilateralism and multilateral institutions is often related to hegemony, even though none of the founding fathers of hegemonic stability theory had much to say about multilateralism (Kindleberger 1973, Gilpin 1975, Krasner 1976). By contrast, in scholarly discussion on multilateralism, the role of hegemony is usually addressed, with more or less elaboration. At a minimum, hegemony is seen as one way of understanding multilateral institutions, as it is “conducive to the provision of international public goods” (Caporaso 1992, p. 616). Ruggie treats hegemony in some detail. He concedes to the proponents of hegemonic stability theory that “hegemonic powers are alike in their quest to organize the international system,” but he emphasises that “the likeness among hegemons stops short of the institutional form by which they choose to organize the system” (Ruggie 1992, p. 585, original emphasis). From here, Ruggie goes on to argue that multilateralism, based on generalised principles of conduct, is

Introduction 5 not simply a result of hegemony in general, but a choice of the US as hegemonic power (Ruggie 1992, p. 593). This is of great relevance for this volume, as considerations on hegemony relate to core players of international relations, the distribution of power and influence amongst them and the question of how that affects the nature and functioning of multilateral institutions. If multilateral organising principles (not simply multilateral institutions in the sense of including more than two actors) are closely related to US hegemony in the era after the Second World War, then hegemonic decline might imply a crisis of multilateralism. In the early 1990s, both Keohane and Ruggie saw reasons for optimism with regard to the future of multilateralism in post-Cold War times. For Keohane, hegemons are not necessary, as “relatively small groups of states can also overcome collective action problems” and provide stable institutional arrangements, while the demand for multilateral arrangements can be expected to increase (Keohane 1990, pp. 741–742). Ruggie points out that, rather than being dominated by hegemons, “major multilateral arrangements in practice are governed by subsets of states,” and he emphasises both the adaptability of institutions to new circumstances (like large numbers of members) and the agency of institutions themselves to promote necessary adjustments (Ruggie 1992, p. 596). By now, three decades have passed since Keohane and Ruggie expressed confidence in the stability of multilateralism as originally shaped by the US, and in the meantime, new powerful actors have emerged in many multilateral settings and challenged the role of the US, or at least specific aspects of it. Therefore, the question arises as to whether these players are proposing new institutional forms or different ordering principles than those developed by the US hegemon, and if so, who is promoting what. Regardless of whether new principles are proposed or not, do we see any signs of shared, or converging, normative preferences amongst the core actors of global politics? If so, this might indicate the possibility of, or maybe even a trend towards, some kind of “multipolar multilateralism” (Van Oudenaren 2004). Naturally one also has to question the depth of normative convergence. It may be easy to proclaim adherence to similar general principles (like non-discrimination in the WTO), but much more difficult to agree on the specific obligations this entails (for example non-discrimination in the context of trade remedies). If normative agreement is only superficial, ordering principles are reduced to shared general intentions, and they play a far less meaningful role in disciplining behaviour. With such a shallow normative dimension multilateralism becomes “diffuse,” as a broader range of actions has to be accepted. Another possibility might be a complete shift away from multilateralism in the Ruggiean sense, where multilateral institutions exist without general ordering principles, as simple diplomatic fora for more than two actors. Related to the question of how hegemony shapes multilateral institutions, one might also wonder about the role multilateralism plays in the foreign policies of main actors. Multilateral institutions can be useful tools for powerful actors, in that they reduce transaction costs of cooperation, while also increasing stability, as they tend to guarantee a fairly balanced distribution of benefits and thus generate

6 Gaenssmantel, Giumelli and Wu commitment (Martin 1992, pp. 783–786). In a similar vein, multilateralism has been described as a hegemonic leadership strategy that allows a predominant power to build an international environment conducive to its interests, while avoiding coercion and submission. It is based on self-restraint and the creation of legitimacy amongst other participants, which in turn leads to consent and acceptance (Homolar 2012, pp. 107–109). The advantages of multilateralism in terms of sharing costs, creating legitimacy and cultivating a positive international image have also been shown for regional hegemons (Erforth 2020). For the present project, this leads to the question of how core players of global politics integrate multilateralism or multilateral institutions in their foreign policies, what degree of self-restraint they preach and practice in this context and to what extent they have been able to create a sense of legitimacy amongst other participants. Multilateralism and multilateral organisations also regularly appear in discussions on international order. In fact, Ruggie’s idea of multilateralism as a generic institutional form with ordering principles clearly goes beyond specific institutions and points to general questions of international order. Caporaso also underlines this when claiming that “[b]ilateralism, imperial hierarchy, and multilateralism are alternative conceptions of how the world might be organized; they are not just different types of concrete organization” (Caporaso 1992, p. 602). Conversely, scholars focusing primarily on questions of order have emphasised that the global order of Western origin is “dense with multilateral rules and institutions – global and regional, economic, political, and securityrelated” (Ikenberry 2005, p. 30). International order has been defined as “the body of rules, norms, and institutions that govern relations among the key players in the international environment,” and which constitute “a stable, structured pattern of relationships” (Mazarr et al. 2016, p. 7, see also Mazarr et al. 2018, pp. 5–6). Ikenberry distinguishes five dimensions that characterise specific types of international order, namely membership scope, the range of policy domains covered, the degree of hierarchy amongst actors, the degree to which order entails restrictions to sovereignty, the extent to which rules and institutions discipline action (Ikenberry 2009, pp. 72–73). Arguably the last two, limits on sovereignty, rules and institutions, can be directly related to the presence and nature of multilateral institutions, and more specifically whether they correspond to multilateralism in the Ruggiean sense, with general ordering principles. Another term which is frequently connected to multilateral institutions is global governance. Much like the other concepts treated so far it defies any straightforward definitions, but in comparison to international order, the focus is more on output, or on what international and transnational cooperation can achieve concretely. In fact, the study of governance emerged from a practical concern with “worldwide problems and processes that went beyond the capacities of individual states” and “collective efforts to identify, understand, or address” them, whereby in addition to multilateral institutions the contribution of private actors (civil society and businesses) is underlined (Weiss & Wilkinson 2014, pp. 208–211, see also Kahler 2004, pp. 150–154, on the role of non-governmental organisations). In relation to this, the current debate on multilateralism has also

Introduction 7 paid attention to the increasing web of international organisations (Higgott 2008) and, more generally, to the centrality of networks, rather than states only, in understanding international dynamics (Van Langenhove 2010, Mueller 2010, Amen et al. 2011). For the purposes of the current project, this dimension is of secondary importance for discussing multilateral institutions, as our focus lies on three core players on the international stage, and on states or intergovernmental organisations rather than private actors. Mirroring the discussion on hegemony above, scholars have claimed that the concepts of order and governance are not neutral, but reflect the preferences of major powers, most importantly the US in the setting that dates back to the period after the Second World War. Miles Kahler, for example, discusses how the current liberal global order can be read as a façade for promoting specific US interests internationally (Kahler 2016, pp. 58–61). Chinese scholar Chen Zhimin places less emphasis on interests, but still describes the previously Western, now global, liberal order as “hierarchical, led by the only superpower – the United States – supported by a US-centred alliance network and by multilateral institutions, with its missions to advance globalization and spread political values originating from the West, such as democracy and human rights” (Chen 2016, p. 776). For the present project, this means that, in addition to the questions on changes in multilateral institutions and the role of core players of international politics in them, one might also ponder whether such developments can and should be understood as part of a broader move to modify international governance and order and how they are linked to particular interests and values.

The US, China and the EU: A Dynamic Triangle As outlined in the section on multilateralism above, the US can be considered the hegemonic actor that chose multilateralism and the related general principles to order international politics (Ruggie 1992), or also as the centre of the Westernturned-global international order (Ikenberry 2009, 2011, Kahler 2016, Chen 2016). However, the relative centrality of the US, and its willingness and ability to pay the price for being at the centre, have changed in the decades since the end of the Cold War. The much-criticised US triumphalism during the “unipolar moment” of the immediate post-Cold War years (Krauthammer 1990) soon turned into a debate around the decline of US hegemony in the new millennium (Schweller & Pu 2011, Acharya 2018). Most recently scholars and policy advisors have even observed an “abdication” or “stepping back” on the part of the US under President Trump (Daalder & Lindsay 2018, Jervis et al. 2018; Mearsheimer 2018). The foreign policy of the Trump administration naturally sticks out, in terms of its aggressive, provocative and disruptive instincts in virtually all policy fields and political arenas, but also, and more concretely, with regard to the active and comprehensive undoing of decisions and policies by Trump’s predecessors. This goes considerably beyond the normal changes brought about by a new administration. Discussions on the TPP go back to President George W. Bush, but the bulk of the negotiations and the signing of the agreement in 2016 happened

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under President Obama. Obama also oversaw the signature and ratification of both the Paris Agreement and the Iran Nuclear Deal in 2015 and 2016. And it had been the Bush administration who had led the US back into UNESCO in 2003, which it had left almost two decades before. At the same time, however, talk about the decline of US hegemony started before Trump, and points towards deeper-seated tensions that go beyond the preferences and the communication style of a single political leader. In fact, strain and discontent on the part of the US were visible already under several of Trump’s predecessors. This was most obvious under President George W. Bush, whose administration explicitly expressed its dissatisfaction with certain aspects of multilateral governance, for example when deciding to ratify neither the Kyoto Protocol nor the Rome Statute of the International Criminal Court, both signed under President Clinton, or when they launched the war on Iraq in 2003 without separate authorisation by the UN Security Council. These episodes have been taken as indicators of “pragmatic,” or even “unilateral” multilateralism, terms which basically describe an attitude of support for multilateralism as long as it fits US policy, but disregard if it does not (Mastanduno 2005, Orentilicher 2004). In an anticipation of the criticisms raised towards President Trump, an observer of the Bush administration interpreted its doctrine of pre-emption as a “revolutionary challenge to existing international norms and institutions” (Xiang 2004, p. 114). In contrast to Trump and Bush, Presidents Clinton and Obama developed foreign policy discourses that accorded greater prominence to multilateralism (Schlesinger 1998, Homolar 2012, p. 110). Nevertheless, underlying US scepticism towards multilateral institutions, and the notions of global governance of which they were part, was palpable also during their times in office. Rather than an outright embrace of multilateral principles and institutions, the idea of “assertive” multilateralism, as promoted by the Clinton administration, implied a strong emphasis on gaining support and creating legitimacy for US foreign policy goals, and has to be read in the context of the unchallenged military strength of the US and a self-perception as possessing superior leadership qualities (Patrick 2015, p. 90). Under Obama, the US “adopted a pragmatic multilateralism, combining formal institutions and flexible partnerships,” and frequently seeking “trade-offs among the United Nations, ad hoc arrangements, and regional organizations,” like for example in the case of the intervention in Libya (Patrick 2015, pp. 92–93). In specific multilateral settings, both Clinton and Obama showed some reluctance towards concrete commitments. Clinton failed to bring the US back to UNESCO, even though positive changes with regard to the grievances that had led to the US withdrawal in 1984 had been confirmed early in his presidency, when his own Democratic Party still controlled both chambers of Congress (Anonymous 2003). With regard to the ICC, while the Clinton administration had been supportive of such an institution in principle, it was far warier than most other signatories, including its Western allies, about ICC jurisdiction over its own nationals and the risk of a “run-away court,” which gradually extends its scope of action beyond the original treaty and may become politically biased (Orentilicher 2004, pp. 418–421). The decision to sign the Rome Statute in 2000 can then be

Introduction 9 seen more as a tactical move to keep a voice in the further preparatory talks, although there was no intention to present it to the Senate for ratification (Scheffer 2001, pp. 58–59, Chayes 2008, p. 49). Clinton also authorised signature of the Kyoto Protocol in 1998 but never even attempted to have it ratified. In this case, however, the administration was unambiguously in favour, while it was strong bipartisan opposition in the Senate that made ratification impossible (Steurer 2003, p. 346). After taking office, Obama’s efforts at reviving US climate diplomacy were constrained in a similar way, and despite a Democratic majority in the Senate, which explains his controversial role in international efforts on the matter and in particular in the Copenhagen Conference (Falkner 2010). It was also under Obama that Congress successfully blocked ratification of the 2010 reform of the International Monetary Fund (IMF) until 2015 (Vestergaard & Wade 2015, p. 2). This means that US hesitancy vis-à-vis multilateralism goes beyond the preferences of any particular presidency but also includes the complexities of Congressional politics, whereby Republican majorities in at least one chamber of Congress have tended to make credible multilateral commitments particularly challenging (Schlesinger 1998, p. 39, Patrick 2015, p. 95, Vestergaard & Wade 2015, p. 2). The rise of China has triggered an extended debate on its potential effects on the international order. One core theme has been the question of where China can be located on the continuum from status quo to reformist and revolutionary powers (Buzan 2010). Whilst some have pointed to almost unavoidable conflict in a power transition between the US and China (Mearsheimer 2010), most scholars have come to consider China as more of a reformist status quo player (Johnston 2003, Xiang 2004, Buzan 2010, Kastner & Saunders 2012), in the sense that it combines an interest in maintaining the liberal international order shaped by the US with a desire to redress, adjust or change some of its features (Ikenberry 2011, Chen 2016, Hameiri & Jones 2018) and to engage with other emerging powers such as Brazil and India (Chin & Thakur 2010). A review of analyses by Chinese academics concludes that China is largely seen “as reactively embracing many of the international norms and integrating itself into the institutions and frameworks that were thrust upon Beijing against its will,” while at the same time “maximizing and leveraging its growing interests to shape the existing order to further its interests, at least for the time being” (Wang & Zhu 2015, p. 362). Ironically, all this suggests that “illiberal China” is lending “pragmatic support” to the existing liberal international order, which implies the question of the conditions under which the two can remain compatible (Kahler 2016, pp. 68–70). In terms of multilateralism, this would mean a degree of Chinese reluctance towards some of the existing ordering principles, which might lead in two directions. On the one hand, one could expect a tendency towards a more diffuse type of multilateralism. Such an expectation shines through in the claim that China’s concept of multilateralism refers by and large to multilateral diplomacy where it engages in institutions with more than two members, not the ideal type as defined by John Ruggie and others, with its organising

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On the other hand, the progressive development of new normative proposals, more in line with China’s political and cultural identity, is also possible. The China-led creation of the Asian Infrastructure Development Bank (AIIB) has been proposed as an indicator of such a trend, in that “[i]t is less the fact of Chinese multilateralism that accounts for the establishment of the AIIB than it is the fact of Chinese multilateralism” (Gu 2017, p. 144, original emphases). From this perspective, distinctive features of such Chineseness include for example a quest for consensus decision-making and an explicit effort at strengthening the role of developing countries (Gu 2017, pp. 147–149, 154). Naturally, this view of the AIIB is contested (see for example Hameiri & Jones 2018, who see the AIIB as all but revisionist and largely marginal). In this connection it is noteworthy that during the Davos meeting in January 2017, shortly before Donald Trump’s inauguration, China signalled its intention to champion globalisation and many saw China as a potential partner to safeguard free trade. Against the backdrop of the broader debate on whether China would help to maintain the liberal international order or rather undermine it, this can be interpreted as a sign that China has moved a little further in the direction of a status quo power. Still, Western partners of the US, and in particular the EU, share many of the US concerns regarding Chinese industrial policies, its role in the international commercial system and more broadly its attitude towards the liberal international order. China’s constitutional amendment eliminating presidential term limits and enabling President Xi Jinping to be re-elected after 2023 strengthened these concerns, as this is seen as an illiberal, authoritarian move, which dampened hopes that political liberalisation would accompany economic integration and might strengthen the tension between domestic illiberalism and the liberal international order of which multilateral institutions are part. The difficulty of transforming China’s state capitalism and integrating its hybrid economy into the WTO triggers irritation among other players of the global trading system, and makes it harder for many international partners to count on, and turn towards, China in the face of unilateralist tendencies in the US and challenges to multilateral institutions. If China epitomises the challenge of emerging countries to the established order, the EU represents another group of crucial actors, namely powerful players at the core of the Western liberal order, but non-hegemonic and with interests that in many ways are markedly different from those of the US. It claims to have multilateralism in its DNA, with a commitment to “respect for the principles of the United Nations Charter and international law” and to “promote multilateral solutions to common problems, in particular in the framework of the United Nations” (Art 21, Treaty on European Union). The debate over the characteristics of the EU as an actor in international affairs goes back to the contested notion of a civilian power, raised in the 1970s (Duchêne 1972). More recently, the perspectives on the EU as a normative power (Manners 2002, Laidi 2008) and

Introduction 11 the more pragmatic idea of a Market Power Europe (Damro 2012) have been prominent in scholarship, and both are highly relevant for understanding EU attitudes towards multilateral institutions. In fact, the EU’s most authoritative statement on its international outlook, the famous Global Strategy, links multilateralism to some of Manners’ five “core norms” of Normative Power Europe, i.e. peace, liberty, democracy, rule of law and respect for human rights (Manners 2002, p. 242): The EU will promote a rules-based global order with multilateralism as its key principle and the United Nations at its core … A multilateral order grounded in international law, including the principles of the UN Charter and the Universal Declaration of Human Rights, is the only guarantee for peace and security at home and abroad. (European External Action Service 2016, pp. 15–16) At the same time, the Global Strategy hints at elements that Damro relates to market power, like the centrality of the common market and the “externalization of its market-related policies and regulatory measures” (Damro 2012, p. 686), in pointing to the EU’s “interests in fair and open markets, in shaping global economic and environmental rules,” or by stating that “[o]ur prosperity hinges on an open and rules-based economic system with a true level playing field, which our economic diplomacy will further promote” (European External Action Service 2016, pp. 15, 41). Thus, the kind of US-made multilateralism, as multilateral institutions cum ordering principles as analysed by Ruggie, has been deeply internalised by the EU on the other side of the Atlantic. Therefore, criticism of, or distancing or even withdrawal from, multilateral fora on the part of the US deprives the EU of an important reference point in terms of international order and puts it in a difficult position, as it is forced to assert its support for multilateralism independently from the US. At the same time, transatlantic trouble goes deeper than the Trump presidency: “Europe and the USA have been drifting apart for nearly three decades, as the glue provided by US existential security guarantees to Europe disappeared with the end of the cold war” (Aggestam & Hyde-Price 2019, p. 114). For the EU this means that it has to re-evaluate its international strategy and the role of established partnerships. The attempts of the European Commission under Ursula von der Leyen at developing a more “geopolitical” and more assertive outlook, can be read in this sense, but naturally also as a more resolute stand against a more assertive China under President Xi Jinping. Aside from this, they certainly confirm both a need of the EU to re-affirm and reassure itself on the international stage, and a new nuance of EU pragmatism vis-à-vis the global and regional order, already identified in academic literature (Browning 2018, Smith & Youngs 2018). The whole dilemma of the EU becomes evident when considering that transatlantic economic, social and political links remain profound (Aggestam & HydePrice 2019, p. 118), and there is also a significant overlap in terms of grievances over China’s perceived abuse of multilateral economic institutions, like the WTO (Smith & Youngs 2018, pp. 48–49).

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The aggressive rhetoric of the Trump administration can thus be understood as a test for the EU and how it manoeuvres between its traditional key ally from across the Atlantic, in light of growing divergences, and its “comprehensive strategic partner,” China, which vividly represents the structural changes taking place in the world, and the related challenges to old patterns of governance. All this means that the focus on the US, China and the EU allows us to relate the discussion to questions of changes in international order, while constituting a proxy for the tendencies towards multipolarity, that avoids the abstract and systemic dimension of this term.

Questions about Multilateralism and the US-China-EU Triangle The contributions to this volume examine the characteristics of specific multilateral institutions and investigate the dynamics of the triangular interplay between the US, China and the EU in each of these settings. Put differently, they analyse whether and how US scepticism (or even retreat) and the rise of China have affected the institution in question, how the EU has positioned itself in this regard and with what effect. The institutions include international conventions, treatybased organisations, but also more loosely connected cooperative arrangements. Concretely the contributors cover UNESCO, the United Nations Human Rights Council, the WHO, the system of international humanitarian law, the UN Convention on the Law of the Seas (UNCLOS), the WTO, the International Monetary Fund (IMF), the International Labour Organization (ILO), the Paris Agreement on Climate Change, the Association of Southeast Asian Nations (ASEAN) Regional Forum (ARF), the cooperative regime created by the Iran Nuclear Deal, the international cooperative efforts regarding peace and stability on the Korean peninsula, and the Middle East Peace Process. Contributors will address the questions raised in the discussion on multilateralism above, but also investigate some more specific implications. Concretely core themes examined in the chapters of this book include the following: ·

·

·

regarding the multilateral institution covered: what are the principles, norms and practices of each of them? How strong, specific and binding are they for participants? Have they undergone any change recently? Have they been challenged by new multilateral initiatives? the US, China and the EU and the norms of the institution: how do these three actors position themselves vis-à-vis those rules and any recent change in them? Have they promoted normative change, and if so of what type? How do their policies interact in this specific setting? Can we observe any convergence on institutional norms that would suggest some form of multipolar multilateralism? Do we see any trend towards more shallow normative commitments, which might indicate a more diffuse multilateralism? the multilateral institution in the foreign policies of the US, China and the EU: what has been the significance of the institutions for US foreign

Introduction 13

·

·

·

policy? To what extent can we talk about US distancing, withdrawal or abdication? Has the rising China positioned itself more as a status quo player or as a reformist? What strategy has it followed to make sure its new prominence in global politics is reflected in structures of multilateral governance? How actively has the EU been involved in the institution? Has it placed more emphasis on the quality of multilateral governance or on its particular interests? Can any such policies in specific multilateral settings be reconducted to general foreign policy trends in the US, China or the EU? Do these actors have any explicit approach to multilateralism that can be linked to the dynamics in this specific institution? What is the role played by particular personalities like Donald Trump or Xi Jinping? Do they lead or reflect change in the multilateral setting covered? triangular interaction between the US, China and the EU: amongst these three actors, who aligns with whom and why? Do we see a tendency towards US-EU alignment against a rising China? Or are there signs of China-EU cooperation against US unilateralism? other participants in the multilateral institution: who are other influential players and how do the US, China and the EU interact with them? To what extent have these three actors been able to gather support amongst other participants of those institutions? Are they able to demonstrate self-restraint and create a perception of legitimacy? international order: can any of the findings be seen as indicative of a broader trend of a changing international order? And do we see in the foreign policies of the US, China and the EU towards the institutions under investigation any desire to promote such change?

Naturally not all contributors address all of these questions. But they all contribute their necessary share to allow us to draw some general conclusions at the end of the volume.

Organisation of the Book Following this introduction, this volume starts from instances of multilateralism with a global reach, addressing the UN and some of its specialised agencies as well as institutional arrangements or regimes under the UN. In Part 1, we discuss UNESCO, the UN Human Rights Council, the WHO, UNCLOS and the system of core multilateral humanitarian treaties. We then shift our focus to multilateral structures for economic, social and environmental cooperation. Part 2 will thus address the WTO’s dispute settlement mechanism, the IMF, the issue of labour standards in the context of the ILO and cooperation on climate change under the Paris Agreement. Finally, Part 3 concentrates on multilateralism and its role in regional security and examines the ARF, approaches to the North Korean nuclear issues with a focus on sanctions, the Iran Nuclear Deal and recent developments in the Middle East Peace Process. At the end of the volume, in the conclusion we will summarise the findings from the preceding chapters, in particular with

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regard to the policies of and interplay amongst the three actors at the centre of this project and discuss implications for multilateralism with reference to the conceptual discussion above.

Notes 1 Press Release by US Department of State, available at https://www.un.org/unispal/document/the-united-states-withdraws-from-unesco-us-department-of-state-press-release/ 2 On some of the measures imposed against China, see Panel Report WT/DS543/R, United States – Tariff Measures on Certain Goods from China, 15 September 2020.

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Introduction 15 European External Action Service (2016) Shared Vision, Common Action: a Global Strategy for the European Union’s Foreign and Security Policy. Luxemburg: Publications Office of the European Union. Falkner, R. (2010) Obama nation? US foreign policy one year on: getting a deal on climate change: Obama’s flexible multilateralism. LSE IDEAS special reports. London: London School of Economics and Political Science. Gilpin, R. (1975) U.S. Power and the Multinational Corporation: the Political Economy of Foreign Direct Investment. New York: Basic Books. Gu, B. (2017) ‘Chinese Multilateralism in the AIIB’, Journal of International Economic Law, 20, pp. 137–158. Hameiri, S. and Jones, L. (2018) ‘China Challenges Global Governance? Chinese International Development Finance and the AIIB’, International Affairs, 94(3), pp. 573–593. Higgott, R. (2008) ‘International Political Institutions’, in SarahA. Binder, R.A.W. Rhodes and B.A. Rockman (eds.), The Oxford Handbook of Political Institutions, Oxford: Oxford University Press, pp. 611–632. Homolar, A. (2012) ‘Multilateralism in Crisis? The Character of US International Engagement under Obama’, Global Society, 26(1), pp. 103–122. Hooghe, L., Lenz, T. and Marks, G. (2019) ‘Contested World Order: The Delegitimation of International Governance’, Review of International Organizations, 14, pp. 731–743. Howorth, J. (2011) ‘The EU’s Security and Defence Policy: Towards a Strategic Approach’, in C. Hill and M. Smith (eds.), International Relations and the European Union, 2nd ed., Oxford: Oxford University Press, pp. 197–225. Ikenberry, J.G. (2005) ‘The Rise of China and the Future of the West. Can the Liberal System Survive?’, Foreign Affairs, 87(1), pp. 23–37. Ikenberry, J.G. (2009) ‘Liberal Internationalism 3.0: America and the Dilemmas of Liberal World Order’, Perspectives on Politics, 7(1), pp. 71–87. Ikenberry, J.G. (2011) ‘The Future of the Liberal World Order: Internationalism After America’, Foreign Affairs, 90(3), pp. 56–68. Ikenberry, J.G. (2018) ‘The End of Liberal International Order?’, International Affairs, 94(1), pp. 7–23. Ikenberry, J.G., Wang, J. and Zhu, F. (eds.) (2015) America, China, and the Struggle for World Order – Ideas, Traditions, Historical Legacies, and Global Visions. New York: Palgrave Macmillan. Jervis, R. et al. (2018) ‘Introduction’, in R. Jervis, F. Gavin, J. Rovner and D. Labrosse (eds.), Chaos in the Liberal Order: The Trump Presidency and International Politics in the Twenty-first Century, New York: Columbia University Press. Johnston, A.I. (2003) ‘Is China a Status Quo Power?’, International Security, 27(4), pp. 5–56. Johnston, A.I. (2007) Social States: China in International Institutions, 1980–2000. Princeton: Princeton University Press. Johnston, A.I. (2013) ‘How New and Assertive Is China’s New Assertiveness?’, International Security, 37(4), pp. 7–48. Kahler, M. (2004) ‘Defining Accountability Up: The Global Economic Multilaterals’, Government and Opposition, 39(2), pp. 132–158. Kahler, M. (2010) ‘Asia and the Reform of Global Governance’, Asian Economic Policy Review, 5, pp. 178–193.

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Kahler, M. (2016) ‘Who is Liberal Now? Rising Powers and Global Norms’, in A. Acharya (ed.), Why Govern? Rethinking Demand and Progress in Global Governance, Cambridge: Cambridge University Press, pp. 55–73. Kastner, S.L. and Saunders, P.C. (2012) ‘Is China a Status Quo or Revisionist State? Leadership Travel as an Empirical Indicator of Foreign Policy Priorities’, International Studies Quarterly, 56, pp. 163–177. Keohane, R.O. (1990) ‘Multilateralism: An Agenda for Research’, International Journal, 45(4), pp. 731–764. Kindleberger, C. (1973) The World in Depression, 1929–1939. Berkeley: University of California Press. Krasner, S.D. (1976) ‘State Power and the Structure of International Trade’, World Politics, 28(3), pp. 317–347. Krauthammer, C. (1990) ‘The Unipolar Moment’, Foreign Affairs, 70(1), pp. 23–33 Laidi, Z. (2008) Norms over Force: The Enigma of European Power. New York: Palgrave. Manners, I. (2002) ‘Normative Power Europe: A Contradiction in Terms?’, Journal of Common Market Studies, 40(2), pp. 235–258. Martin, L.L. (1992) ‘Interests, Power, and Multilateralism’, International Organization, 46(4), pp, 765–792. Mastanduno, M. (2005) ‘US Foreign Policy and the Pragmatic Use of International Institutions’, Australian Journal of International Affairs, 59(3), pp. 317–333. Maull, H.W. (2005) ‘Europe and the New Balance of Global Order’, International Affairs, 81(4), pp. 775–799. Mazarr, M.J. et al. (2016) Understanding the Current International Order. Santa Monica: RAND. Mazarr, M.J. et al. (2018) China and the International Order. Santa Monica: RAND. Mearsheimer, J. (2010) ‘The Gathering Storm: China's Challenge to US Power in Asia’, The Chinese Journal of International Politics, 3, pp. 381–396. Mearsheimer, J. (2018) The Great Delusion: Liberal Dreams and International Realities. New Haven and London: Yale University Press. Mueller, M.L. (2010) Networks and States: The Global Politics of Internet Governance. Cambridge MA: The MIT Press. Nathan, A.J. (2016) ‘China’s Rise and International Regimes: Does China Seek to Overthrow Global Norms?’, in R.S. Ross and J.I. Bekkevold (eds.), China in the Era of Xi Jinping: Domestic and Foreign Policy Challenges, Washington, DC: Georgetown University Press, pp. 165–195. Orentilicher, D.F. (2004) ‘Unilateral Multilateralism: United States Policy toward the International Criminal Court’, Cornell International Law Journal, 36(3), pp. 415–433. Patrick, S. (2015) ‘The United States, the United Nations, and Collective Security: Exploring the Deep Sources of American Conduct’, in J.G. Ikenberry, J. Wang and F. Zhu (eds.), America, China, and the Struggle for World Order: Ideas, Traditions, Historical Legacies, and Global Visions, New York: Palgrave Macmillan, pp. 71–102. Pisani‐Ferry, J. (2019) ‘Can Economic Multilateralism Survive?’, Economic Affairs, 39, pp. 3–24. Ruggie, J.G. (1992) ‘Multilateralism: The Anatomy of an Institution’, International Organization, 46(3), pp. 561–598. Scheffer, D.J. (2001) ‘Staying the Course with the International Criminal Court’, Cornell International Law Journal, 35(1), pp. 47–100. Schlesinger, S. (1998) ‘The End of Idealism: Foreign Policy in the Clinton Years’, World Policy Journal, 15(4), pp. 36–40.

Introduction 17 Schweller, R.L. and Pu, X. (2011) ‘After Unipolarity: China's Visions of International Order in an Era of U.S. Decline’, International Security, 36(1), pp. 41–72. Smith, M.H. and Youngs, R. (2018) ‘The EU and the Global Order: Contingent Liberalism’, The International Spectator, 53(1), pp. 45–56. Steurer, R. (2003) ‘The US Retreat from the Kyoto Protocol: And Account of a Policy Change and Its Implications for Future Climate Change Policy’, European Environment, 13, pp. 344–360 Van Langenhove, L. (2010) ‘The Transformation of Multilateralism Mode 1.0 to Mode 2.0.’, Global Policy, 1(3), pp. 263–270. Van Oudenaren, J. (2004) ‘Unipolar versus Unilateral’, Policy Review (Hoover Institution), April & May. Vestergaard, J. and Wade, R.H. (2015) ‘Still in the Woods: Gridlock in the IMF and the World Bank Puts Multilateralism at Risk’, Global Policy, 6(1), pp. 1–12. Wang, F. (2015) ‘From Tianxia to Westphalia: The Evolving Chinese Conception of Sovereignty and World Order’, in J.G. Ikenberry, J. Wang, F. Zhu (eds.), America, China, and the Struggle for World Order – Ideas, Traditions, Historical Legacies, and Global Visions, New York: Palgrave Macmillan, pp. 43–68. Wang, J. (2019) ‘Xi Jinping’s “Major Country Diplomacy:” A Paradigm Shift?’, Journal of Contemporary China, 28(115), pp. 15–30. Wang, J. and Zhu, F. (2015) ‘Conclusion: The United States, China, and World Order’, in J.G. Ikenberry, J. Wang, F. Zhu (eds.), America, China, and the Struggle for World Order: Ideas, Traditions, Historical Legacies, and Global Visions, New York: Palgrave Macmillan, pp. 359–378. Weiss, T.G. and Wilkinson, R. (2014) ‘Rethinking Global Governance? Complexity, Authority, Power, Change’, International Studies Quarterly, 58, pp. 207–215. Wright, T. (2017) ‘Trump Remains a NATO Skeptic’, The Atlantic, 27 May, available at https://www.theatlantic.com/international/archive/2017/05/trump-nato-article-five -israel-saudi-arabia/528393/ Xiang, L. (2004) ‘China’s Eurasian Experiment’, Survival, 46(2), pp. 109–122. Yan, X. (2014) ‘From Keeping a Low Profile to Striving for Achievement’, Chinese Journal of International Politics, pp. 153–184. Yuan, J. (2018) ‘Beijing’s Institutional-Balancing Strategies: Rationales, Implementation and Efficacy’, Australian Journal of International Affairs, 72(2), pp. 110–128.

Part 1

Global Multilateralism: The UN, Its Specialised Agencies and Related Regimes

1

Cultural Heritage as the New Standard of Civilisation? Engagement with UNESCO from Rejection to Aggressive Embrace and the Perpetuation of Empire Lucas Lixinski

Introduction Cultural heritage has long been a means of exerting diplomatic power, particularly soft power. Heritage can both be a part of diplomatic efforts, or itself be diplomacy, as Tim Winter (2015) has argued. Meant to be a bridge between civilisations and a tool for perpetual peace, culture is an often-underestimated means through which power is performed on the international stage. In this respect, the United Nations Educational, Scientific and Cultural Organization (UNESCO) is a pivotal space where multilateralism takes place, alongside posturing and diplomatic muscleflexing by specific states and other international actors. Through their diplomatic practices, states show the myriad uses of heritage for both internal and external purposes. Common to these uses is the idea of cultural heritage as a new means of securing a spot among civilised nations. Civilisation, after all, begets culture, and internationally recognised culture therefore is a sign of an internationally recognised civilisation. This distinction has historically been enshrined in international law, too. Article 38(1)(c) of the Statute of the International Court of Justice, for instance, describes general principles of law “recognized by civilized nations” as a source of international law. But as international law moves away from officially endorsing the distinction between civilised and uncivilised nations, some animals still need to be more equal than others (to reference George Orwell’s Animal Farm), and a different proxy is needed. I argue in this chapter that this new standard of civilisation is to be found in international cultural heritage law, regimes and processes, and that it creates opportunities to shape (rather than just be shaped by) the competition for hegemonic power among three major powers. Heritage diplomacy becomes a fertile ground through which different forms of engagement with the international sphere are performed, and, with them, different ways of seeing the world and wanting to be seen by it. Examining the practice of the European Union (EU), the United States (US) and China, I show how different modes of engagement result in a dynamic environment that is a proxy for mapping multilateralism when the stakes of “civilisation” are sharply on the surface. DOI: 10.4324/9781003167358-3

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I will particularly focus on UNESCO’s two leading heritage domains: World Heritage, through the 1972 World Heritage Convention (WHC);1 and intangible cultural heritage (ICH), colloquially known as folklore (a comparison criticised in heritage circles, however, as discussed by Lixinski 2013), through the lenses of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (ICHC).2 Both treaties create international lists, which makes them comparable, even if there are marked differences in the ways in which listing is used by states. While the former can be seen primarily as a means of showcasing heritage to the world, the latter seems to be more often used to control the internal limits of culture to pave the way for international posturing. In what follows I will first discuss the connection between UNESCO heritage programmes and a new “standard of civilisation”; next, I will map out three different models of engagement with multilateralism through heritage. Next, I will focus on the engagement of China, the EU and the US with the WHC and ICHC as a means of highlighting the impacts of the three modes of engagement mapped out in the previous section, as well as the possibilities of mediating tensions among these three powers (blocs). I will then provide some concluding remarks underscoring the consequences of thinking about heritage diplomacy as a theatre for multilateralism more generally.

Heritage Diplomacy and the Standard of Civilisation The ongoing conflict in the Middle East, and the destruction and looting of cultural sites there, have put UNESCO firmly at the forefront of the international agenda. But, more than a forum for countries all over the world to decry the loss of ancient sites, UNESCO has also become the new international site for the culture wars. UNESCO now gets together and passes judgement on the civilised and the uncivilised. Every time it decides whether something should be on an international list, it is in fact assessing culture against international benchmarks of what it considers to be civilised. These judgements have implications for the international reputation of countries; after all, a country with culture accepted by other countries as the “right” kind of culture is civilised, and deserving of our attention and trade. A civilised country is also deserving of support to resolve its problems internally, as opposed to needing foreign intervention – civilisation protects sovereignty, in other words. Many states, particularly among the emerging economies known as BRICS (Brazil, Russia, India, China and South Africa), have already caught on to those possibilities, and are using UNESCO processes to try and create better images of themselves (Meskell 2018). Sometimes the culture states put forward is the culture of minorities, and is presented in a way that ties that minority into a broader national narrative, regardless of whether the minority has consented to that portrayal. UNESCO rules seldom require a country to consult domestically before proposing things to international lists, and therefore these rules are subject to abuse. Embracing cultural diversity at the domestic and international levels is a worthwhile goal, but manipulating these processes to create an appearance of

The New Standard of Civilisation? 23 cultural diversity and governance that acts as a smokescreen to hide domestic rule of law problems such as minority oppression flies in the face of the purported objective of these rules. These (mis)uses of cultural diversity follow the letter of the law, though, even if not its spirit, and are therefore hard to combat using legal techniques and tools. Historically, the distinction between civilised and uncivilised has played a large role in how the world operates. It has justified colonialism, wars and unequal terms of trade. Throughout history, non-Western countries have quickly caught on to the disadvantages of being deemed “uncivilised,” and manipulated international processes to present themselves as civilised (Becker Lorca 2014). Sometimes that meant the training of diplomats in Western countries, and the adoption of Western dress during diplomatic meetings, instead of their regular formal wear. Now, at UNESCO, it means staking a claim to cultural heritage and showcasing it as worthy of comparison with Western culture. Since its creation in 1946, UNESCO has become the main international forum where culture is judged and deemed worthy of the civilised world or not. In the 70 years since its founding, several different mechanisms were developed under UNESCO, depending on the type or domain of culture being looked at. Each of these mechanisms has been and is exploited to redefine the boundaries of civilisation. Perhaps the best-known domain of culture UNESCO deals with is World Heritage, best represented by a list of over 1,000 places around the world that includes the Grand Canyon, the Vatican and Machu Picchu (UNESCO 2019d). To get on the World Heritage List, a site needs “outstanding universal value,” which has become a mark of civilisation. But this mark of civilisation is self-reinforcing, inasmuch as it stands for a very specific Western aesthetic of monumentality (Brumann & Berliner 2016). Among the listed sites in Africa and Asia, for instance, a large number are remnants of colonisation by European countries. Which is to say, the native culture of these countries is still largely deemed “uncivilised” by these standards. One notable exception is China, which in the past decade or so has quickly risen to become the country with the second most sites on the World Heritage List (Italy is the first; Spain, France and Germany round out the top five countries) (UNESCO 2019e), increasingly using its presence on the list as a mark of its embrace of, and presence in, the world community at large. China’s embrace of cultural heritage processes has also attempted to cleverly use “civilisation” to pursue other international agendas. For example, the presence of Chinese shipwrecks (a domain of heritage covered by a specific UNESCO treaty) in the South China Seas has been used as an argument for China to claim historic occupation (and therefore current legal title) to the area (Guilford 2013). Other processes under UNESCO for different types of culture can also be used to pursue different domestic and international political agendas, by categorising culture as civilised or not. The mechanisms available with respect to ICH can be used to manipulate minorities, as only the state where the culture exists (and not the minority group themselves) gets to speak at UNESCO about what the cultural

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practice means and entails (Lixinski 2013). In doing that, countries can potentially manipulate a culture to make it seem supportive of a nationalistic political agenda, even if the minority is in fact seeking independence. The legal definition of intangible cultural heritage, on the other hand, says that only forms of culture that comply with universal human rights standards will be accepted (ICH Convention, Article 2.1). Female circumcision was the example in mind when the definition was created, but it has since been used to pass judgement on other forms of culture (Lixinski 2020). The Kankurang (Manding initiatory rite practiced in Senegal and Gambia) has been scrutinised for potential violation of children’s rights, for instance (UNESCO 2019a). This series of rituals and ceremonies involves, among other things, the circumcision of young males, so they can become men in the eyes of the tribe. This practice has ultimately been added to the international list, but that was not always a certainty, given heated debates within UNESCO suggesting that physical harm should not be condoned and protected as culture (Lixinski 2020). Bullfighting in Spain is currently being hotly debated around Europe for its potential violations of animal rights, too (Alamilla 2018). If it gets rejected from the international intangible heritage list, it will mean saying that the practice is barbaric, uncivilised, in the eyes of the world. The effect of all these different processes and UNESCO involvement in culture is to reargue the boundaries of civilised and uncivilised, in a discussion that is done in a quieter, almost technocratic manner. That these judgements are depoliticised is not necessarily a bad thing; the real problem is that they happen without people taking notice until it is too late. If UNESCO is to be the new frontier of the clashes of civilisations, so be it. But we all need to pay more attention, and engage with UNESCO in a way that allows us to perceive cultural diversity not only as a tool to pursue diplomatic agendas, but one that can truly elevate us and promote better understanding of other cultures. After establishing UNESCO’s role and mandate in the area of heritage, and the possibilities of cultural heritage to manufacture and reinforce notions about civilisation and belonging in international relations, a question remains as to whether this interpretation resonates with major powers’ interactions with the organisation. The next section maps out how the three powers that are the focus of this book (China, the EU and the US) engage with UNESCO, before analysing these models and their implications in more depth.

Cultural Heritage Multilateralism and Soft Power: Three Models The three powers that are the object of this chapter each have different modes of engagement with UNESCO, at least seen from the perspective of cultural heritage. Cultural heritage is an important component of civilisation, and, as such, it speaks to distributions of identity that are important for the shift or maintenance of hegemony (Allan et al. 2018). Therefore, the engagement

The New Standard of Civilisation? 25 with heritage forms part of discursive practices that shape leadership and the possibilities of the emergence of competing hegemony. (Liberal) political values go against the rise of China as a hegemon, so other avenues need to be pursued, and historical civilisational achievement, alongside current cultural might, gain more importance. China: Strategic Platform China’s use of cultural heritage processes points in the direction of using these multilateral fora as a platform to position China as a world leader, whether it is through its civilisational standing (WHC), its presentation of a unified identity to the world (ICHC) or, as has become the case since US departure from UNESCO (see below), occupying a power vacuum. In fact, China attempted to have one of their own elected as UNESCO Director-General in 2017 (Lynch & Groll 2017), underscoring the importance China gives to this specialised body of the UN system. China’s engagement with UNESCO’s culture programmes, particularly heritage, has also served to place China in relation to its neighbours and economic rivals, such as South Korea and particularly Japan, particularly in the invocation of WWII events to attack Japan’s attempts (successful or not) to list heritage related to WWII, whether it is the Hiroshima Peace Memorial on the World Heritage List, or China’s inclusion of the Nanjing Massacre archives onto the Memory of the World Program (The Guardian 2016). China is also working in partnership with South Korea on a multinational serial World Heritage site (meaning a number of non-continuous sites that together tell a single story of “outstanding universal value”) to inscribe sites of Japanese occupation and atrocities during WWII in the territories of these two countries (Lixinski 2021). These processes help position China as a victim in the region, arguably softening its image as an aggressive hegemon. In other words, China, alone or in partnership with other countries, uses UNESCO heritage processes to position China as a leader in civilisation, and as a victim of its neighbours, which helps cement Chinese aspirations to leadership, while simultaneously shielding it from being attacked as a hegemon. European Union: Alliance For the EU, the alliance with UNESCO is fairly formalised, as discussed below, and there are programmes between the two international organisations that transcend the usual relationship between UNESCO and member states. Part of the EU’s special position within UNESCO has to do with the fact that any relationship between UNESCO and the EU in fact necessitates a special agreement, since the EU itself cannot be a UNESCO member. But the EU’s engagement with UNESCO goes also beyond EU borders, indicating a desire to use culture and heritage diplomacy to occupy spaces not necessarily tied to nationalistic projects. In the case of engagement with African countries, in particular, it may be that the EU is attempting to use soft power to combat the increasing presence of China in the region, which

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the EU decries usually on the basis of human rights conditionality (Bodomo 2019). The EU requires human rights conditionality for its economic engagement with other countries, but China does not, and that has led to many investment-receiving countries being more friendly towards China, displacing EU economic and political influence in former European colonies. As such, Chinese money has flowed more easily throughout Africa, and the EU needs to reassert its presence and influence in other ways (Bohoslavsky 2019). UNESCO is a difficult institutional candidate to mediate these relationships, since the EU itself is not a member. But heritage more broadly may be just such a way, since it speaks so powerfully to identity. Further, the EU funding heritage projects in Africa takes attention away from the constant claims for the return of African heritage in European museums and other public spaces (Nayeri 2018), allowing the EU to play a similar role to China in leveraging heritage to hide a hegemonic facet of its engagement. A key difference is that, while EU countries’ taking of African heritage is largely a past practice, Chinese hegemony in Asia, discussed in the previous subsection, is very much ongoing. United States: Rejection Finally, US engagement with UNESCO is characterised by a rejection of soft diplomacy, and an inward-looking focus that is in line with US exceptionalism and its overall engagement with heritage (Kupchan 2018). The US in a move started during the Obama administration but executed during the Trump administration decided to leave UNESCO as a result of UNESCO’s acceptance of Palestine as a member state, as is well documented (Sputnik International 2017; Rosenberg & Morello 2017). But the US in the meantime has also accrued significant debts to UNESCO, since its suspension in 2012 did not mean a suspension of its financial obligations (Coningham 2017). As these obligations mounted to close to half a billion US dollars, the US decided to finally leave UNESCO, an action it has already taken in the past (Lynch 2017). Notably, US withdrawal leaves a power gap that is set to be occupied by China, but it will continue to engage with UNESCO as an observer state, and its participation in the WHC remains unchanged (Greshko 2017). These three models set the scene for us to think about the different modes of engagement not only with UNESCO and cultural heritage more broadly, but also with the idea of cultural heritage listing as markers of “civilisation.” The next section analyses how these models play out in the practice of multilateral engagement with UNESCO’s heritage-listing processes in more detail, particularly seen from the perspectives of World Heritage and Intangible Cultural Heritage, UNESCO’s two main list-creating treaties.

Engagement with UNESCO’s Heritage Domains and the Promises and Perils of and for Multilateralism This section focuses on the ways in which these three powers, in their different modes of engagement, look at UNESCO heritage-listing efforts, and what these

The New Standard of Civilisation? 27 efforts mean for the (re)making of these actors’ power and influence in the world, measured against the yardstick of cultural civilisation. The framing of the modes of engagement in this section has a double meaning. First, it illustrates how, in spite of these powers’ wishes, they are still fundamentally constrained by the language of the different treaties and mechanisms within the international organisation, which funnels energy in specific and often path-dependent ways, thus shaping the three modes mapped out above. Second, and relatedly, describing the modes of engagement through the lenses of inward-looking (that is, use of international heritage processes for primarily domestic audiences) and outward-looking (that is, use of international heritage processes for primarily international audiences) offers a heuristic binary (but not without its constitutive consequences, as indicated in the previous point) that allows for deeper analysis of the engagement of these actors. Therefore, this section proceeds in three parts. First, looking at the outwardlooking pathways of engagement with World Heritage and the World Heritage List, that showcase civilisation to the world at large. Second, focusing on the inward-facing possibilities of intangible heritage as a means to galvanise and create civilisation for domestic purposes. Finally, I will build on these two analytical prisms to discuss possible lessons for multilateral engagement and the making of the standards of civilisation. Outward-Looking World Heritage As indicated above, the World Heritage List under the WHC is a highly successful mechanism, with 1,092 sites inscribed across 167 countries at the time of writing. The World Heritage List was originally created as a means to showcase “outstanding universal value” of sites, understood as cultural and/or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity. As such, the permanent protection of this heritage is of the highest importance to the international community as a whole.3 Under this definition, inscribed heritage clearly has an outward-facing component, even if ultimately it still largely serves nationalistic (or, in the EU’s case, regional) narratives. With respect to China’s engagement with World Heritage, as mentioned above, China is on its way to become the country with the largest number of World Heritage sites. It currently ranks second, after Italy, but, with 62 sites on the Tentative List (UNESCO 2019f) that indicates intention to add to the World Heritage List (compared to Italy’s 40, for instance) (UNESCO 2019g), China is well positioned to take the lead in the near future. On the one hand, it is entirely understandable that this might happen. After all, China is bigger in territory and population than the entirety of the European Union, let alone Italy. Like Italy and other European countries, it also boasts extensive remnants of ancient civilisation,

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which is favoured in World Heritage processes and their focus on monumentality. Lastly, China also has the financial resources to invest in the expensive nomination processes. The question that remains is why exactly China would be so keen to engage in World Heritage listing. One possible explanation, already mentioned above, is to reinforce China’s standing among the contemporary world’s greatest cultures, and therefore greatest countries. The process behind listing the Great Wall is emblematic. According to Haiming Yan (2018), the Great Wall contains two narratives sometimes in tension with one another: the Great Wall as “defensive, exclusive, and conservative”; and the Great Wall as “expansive, inclusive, and open” (Yan 2018, pp. 155–157). Since its early days, the Great Wall may not have functioned as an impenetrable defence system, but it has always played the role of “a cultural marker between civilization and barbarism” (Yan 2018, p. 157). While the Great Wall started playing an increasingly prominent role in unifying the Chinese nation in the early 20th century, it was only in the UN era that it came to symbolise global friendship. In this latter iteration, it was added to the World Heritage List in 1987, after being re-valorised by external actors, who are responsible even for the term “Great Wall” (Yan 2018, p. 161). Western engagement with this monument has always been essential for its narrative of civilisational prowess, and, as such, it forms an important part of China’s posturing as a major civilisation on the world stage. As Yan (2018, p. 166) put it, “the more it is appreciated internationally, the more the Great Wall becomes domestically enshrined.” The Great Wall stops being a barrier separating China from the world, and becomes a symbolic channel that connects China to the rest of the world. The listing of Chinese World Heritage sites is seen by Chinese officials at the local and national levels as an acceptance of Chinese worldviews and civilisation by the West. But at the same time, listing underscores the differences between China and the rest of the world, particularly the West. Therefore, WHC processes play a dual function of bringing China to the world stage as a great civilisation, while at the same time making it distinctive and unique. So, while outward-looking, World Heritage status in China also plays a role in cementing nationalistic sentiment, which is more acutely seen in the context of intangible heritage and the ICHC, discussed below. In contrast, the European Union’s engagement with World Heritage focuses not only on sites within the EU, but also beyond (whether in Europe or elsewhere, particularly Africa). On the basis of a memorandum of understanding between the EU and UNESCO (UNESCO 2012), the former contributes funding and technical assistance (a major form of international cooperation under the terms of the WHC) for the safeguarding of World Heritage sites in non-EU countries in Europe, Africa and the Middle East. With respect to sites within EU borders, the EU has concluded a specific agreement that focuses on the protection of World Heritage cultural sites, valued at EUR 1.6 million (UNESCO 2019b). Protecting these sites aligns with the EU narrative, discussed by Psychogiopoulou (2018), of privileging heritage that speaks to a shared European identity (or a “European dimension” of heritage),

The New Standard of Civilisation? 29 sometimes at the expense of heritage sites that challenge this idea of European unity. In relation to sites elsewhere, the countries that benefit from EU funding for heritage protection are generally former European colonies, even if the cultural heritage being targeted with the money is not necessarily European in origin. The EU also funds specific projects with respect to Syrian heritage in the context of the ongoing conflict (UNESCO 2019c). Through these external activities, the EU places itself in the role of benefactor, and therefore uses cultural heritage soft power not only to showcase its own culture, but to ingratiate itself with other countries. There is a risk that, as with any foreign aid, these programmes in fact replicate colonial patterns, and even reinforce EU presence in areas it seeks to engage with in neo-colonial forms, echoing tensions in the area of international development (Kapoor 2008). Technical assistance as a key modality of cooperation is emblematic, since it may mean in the specifics that only EU experts can be hired for safeguarding projects, meaning that effectively the EU would be using foreign aid to subsidise its own culture sector. Even if that is a risk, though, the EU is still distinctively outward-facing in its approach to World Heritage. The US approach to World Heritage is markedly different from the EU’s, and in many respects similar to China’s. It is noteworthy that the WHC structure, and particularly the listing mechanism, is modelled after the US National Parks system (Cameron & Rössler 2013), which can be seen through US natural sites on the World Heritage List, such as the Grand Canyon (Arizona) and Yellowstone (Wyoming). But US engagement with the World Heritage List has for the most part been used to promote symbols of US might to the world. Key among those are US cultural sites on the list, such as the Statue of Liberty (New York, NY) and Independence Hall (Philadelphia, PA). Both of these sites project an image of the US as the birthplace of democracy and a land of opportunity, which are key characteristics of the diplomatic persona of the United States. Engagement with the WHC and the World Heritage List in particular by the US, China and the EU therefore shows that this list allows for the projection of an outward-facing image that is central to international diplomacy. However, this type of projection is not to be found across all of UNESCO’s heritage domains. The next subsection engages with ICH as an example of how heritage does not always serve an outward-facing purpose, even if certain advantages can still be derived from engagement with that convention. Inward-Looking Intangible Cultural Heritage In opposition to the outward-facing effects of World Heritage List as UNESCO’s flagship heritage programme, other heritage domains under UNESCO allow for the engagement by states and entities like the EU in more inward-facing ways. That is specifically the case with ICH under the 2003 ICHC, which, with 178 states parties at the time of writing, is also a very successful treaty, and thus a good counterpoint to the WHC. Initially modelled after the WHC, the ICHC also responds to some of the criticisms of the World Heritage system, particularly its Western-centric

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orientation and emphasis on monumentality. Therefore, the main list under the ICHC focuses on “representativeness,” rather than “outstanding universal value,” as a key criterion (Lixinski 2013). The representative qualification of ICH, as well as its natural predisposition to being closer to identity (inasmuch as ICH is living heritage, and thus cannot be dissociated from people in the same way as monuments and sites under the WHC can), make this heritage domain suited to engaging with the internal control possibilities of heritage, which can have impacts on heritage diplomacy. With respect to China, as indicated above, ICH and the ICHC represent an optimal avenue for the nationalistic and minority control project associated with heritage. In contexts like Tibet, heritage has often been used to control the Tibetan minority, and authorise specific meanings of their heritage that do not engage with separatism or Tibetan identity politics more generally. At times, too, heritage listing itself has been used as a tool of minority oppression, such as the listing of Lhasa on the World Heritage List, which was used as a pretext to relocate Tibetan shop owners from the market square, and make way for Han souvenir shop owners (Shepherd 2006). With respect specifically to ICH, a key example is the listing of Tibetan Opera, which, as I discussed elsewhere, allowed for the Chinese central government to control the meanings of this cultural expression, and strip it of any possible political connotations (Lixinski 2013). Importantly for our purposes, though, before the rest of the world the listing of Tibetan heritage is read as the Chinese government embracing cultural diversity, while in effect it is authorising a very specific version of that heritage, that can in fact be characterised as further oppression (Lixinski 2015). In the EU context, ICH is used, much like other cultural heritage, for the promotion of European-ness, or a shared European identity. The benefit for EU foreign policy is less apparent, except inasmuch as the market rationality imposed on the treatment of heritage (in other words, that EU action is only triggered if an impact on economic freedoms can be perceived) means the EU can use ICH to engage in the cultural exception to trade (Lixinski 2013; Voon 2007). With respect to the US, it must be said at the outset that the US is not a party to the ICHC. However, it does have a fairly rich ICH programme internally, particularly through the Smithsonian Institution’s Center for Folklife and Cultural Heritage (2019). This Center, as well as other ICH initiatives throughout the US, are used largely to cement a sense of the US as a melting pot, thus serving the purpose of unifying US communities amongst themselves, and has no clear outward-facing purpose (Stefano 2016). This subsection shows that not all engagements with heritage serve only (or even primarily) diplomacy purposes. Rather, in many instances, diplomatic effects are incidental, if there are any at all. But, for the domains of heritage where there is a clear outward-looking dimension, they factor heavily in how soft power is exercised in multilateral fora. Nevertheless, the diplomatic effects exist, and it is important to account for them in making sense of trilateral engagement among the EU, the US and China. The next subsection engages with some of those possibilities, reconnecting to the role of heritage listing as the standard of

The New Standard of Civilisation? 31 civilisation, and making recommendations for UNESCO’s role inasmuch as it is affected by the gravitational pull of this diplomatic triangle. Beyond Inward and Outward: Looking Forward The modalities of engagement with UNESCO of the EU (alliance), the US (rejection) and China (platform) are inevitably shaped by the possibilities of the international regimes through which they are channelled. With respect to cultural heritage specifically, one also must consider the appeal of heritage listing as a new standard of civilisation, which influences and is influenced by these attitudes. But so far our mapping largely assumes that UNESCO heritage processes are funnels with relatively little agency. This section aims at adding another layer of complexity by not only querying what we can say about these three powers through their engagement with UNESCO and heritage processes, but also what these types of engagement say about heritage and multilateral specialised fora more broadly. In this discussion, it is not my aim to point at means of constricting or “taming” certain powers, but rather to contribute to a framework of productive engagement in service not of these powers’ foreign policy agendas, but of the global public goods that international leadership makes them more responsible for than other countries. With respect to heritage, the standard of civilisation is, unsurprisingly, a key factor to consider. The engagement of these three actors seems to be reshaping the standard of civilisation in largely productive ways, by expanding what heritage is worthy of international attention. However, it bears noting that this expansion is a double-edged sword, and that in the context of ICH, for instance, the standard can facilitate domestic assimilationist policies that are not really conducive to fostering cultural diversity. The capture of the standard of civilisation in these two diametrically opposed ways therefore shows a passivity of UNESCO heritage processes. As UNESCO finds itself in a particularly vulnerable financial and political position in light of US departure, China’s occupation of the power vacuum has been all the more powerful. However, UNESCO would do well to remember that China stands to benefit enormously from using UNESCO processes, so the organisation need not passively endure the manipulation of its mandate. The EU’s alliance with the organisation can be an important counterpoint in this respect, except the EU, too, is more concerned with promoting Europeanness at the expense of subaltern accounts. UNESCO needs to use its leverage in heritage processes towards these actors more effectively, and in this way promote engagement with the standard of civilisation and cultural diversity in ways that do not serve only international posturing and internal politics, but rather can generate tangible multilateral (or at least tripartite) international leadership. The lessons for international organisations follow from the UNESCO heritage context. Mapping out the modes of engagement of these different powers is useful in helping identify their key interests, and what is at stake in this engagement. But the mapping does not render international organisations passive. There is, after all, more to international organisations than just pursuing the interests

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of their individual members, if one subscribes (like me) to a theory of public goods (Stiglitz 1995; Russett & Sullivan 1971), as opposed to functionalism, a descriptive and normative account that is grounded on colonial management techniques (Klabbers 2014). International organisations therefore are presented with opportunities to leverage the mapping of “great powers” dynamics to pursue their own agendas. The lesson to be drawn from the UNESCO example and the modes of engagement of the three powers (China, the EU and the US) is that power vacuums present opportunities not only for states to occupy a space and shape it in their own semblance, but also for international organisations to hold their ground and use the space to shape the power’s actions to advance a global public goods agenda.

Conclusion Heritage diplomacy is a fruitful means of thinking about multilateralism, particularly inasmuch as multilateralism is at least in some respects a competition for hegemony, and hegemony requires civilisational leadership. As cultural heritage becomes the new standard of civilisation, the engagement of these three powers shows how heritage is shaped by different hegemonic agendas. But there is an underlying promise in multilateral institutions, particularly those dedicated to global public goods, in also shaping the rules of engagement in the race for hegemony, and an opportunity to be seized by organisations like UNESCO to shape a multi-power landscape that pursues objectives well beyond domestic or regional domination agendas. A multi-power landscape within UNESCO requires it being less dependent on the funding from a handful of nations. Voluntary contributions are one way to address this dependency, but UNESCO needs to reimagine what it can offer in exchange for additional resources. The veil of neutrality that UNESCO has worn for so many years is all but gone, so a purported interest in a global public good that is beyond politics will not be an appealing proposition unless UNESCO can regain credibility. Accepting Palestine as a member, though it triggered US departure from the organisation, can be read as an attempt by the organisation to position itself above great powers’ political interests and in service of humanity at large. At the same time, it had unintended consequences that made the organisation more of a prey to those political interests, at least in the short term. The European Union, because of its internally diffused power and resources, can act as an important counterpoint, but it needs to resist the urge to perpetuate the imposition of its own civilisational agenda onto UNESCO, however indirectly. Further, recovering UNESCO’s civilisational mandate and putting it in the open may trigger competition and further politicise the organisation in the short term, but making these politics that already happen in the shadows visible can only benefit multilateralism. Multilateralism will be enriched and ultimately strengthened by opening more possibilities to less active states to diffuse power in the institution and make the standard more representative of the diversity of civilisations in the world.

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Notes 1 Convention concerning the Protection of the World Cultural and Natural Heritage 1972 (adopted 23 November 1972, entered into force 15 December 1975) 1037 UNTS 151 (WHC). 2 Convention for Safeguarding of the Intangible Cultural Heritage 2003 (adopted 17 October 2003, entered into force 20 April 2006) 2368 UNTS 3 (ICHC). 3 Operational Guidelines for the World Heritage Convention, UNESCO Doc. WHC.19/01 (10 July 2019), para. 49.

References Allan, B.B., Vucetic, S. and Hopf, T. (2018) ‘The Distribution of Identity and the Future of International Order: China’s Hegemonic Prospects’, International Organization, 72(4), pp. 839–869. Becker Lorca, A. (2014) Mestizo International Law: A Global Intellectual History 1842– 1933. Cambridge: Cambridge University Press. Bodomo, A. (2019) ‘Africa-China-Europe relations: Conditions and conditionalities’, Journal of International Studies, 12(4), pp. 115–129. Bohoslavsky, J.P. (2019) ‘A Human Rights Focus to Upgrade China’s International Lending’, The Chinese Journal of Global Governance, 5(1), pp. 69–97. Brumann, C. and Berliner, D. (2016) ‘Introduction. UNESCO World Heritage: Grounded?’ In C. Brumann and D. Berliner (eds.), World Heritage on the Ground: Ethnographic Perspectives. New York: Berghahn, pp. 1–34. Cameron, C. and Rössler, M. (2013) Many Voices, One Vision: The Early Years of the World Heritage Convention. London: Ashgate. Coningham, R. (2017) ‘Why the US Withdrawal from UNESCO is a Step Backwards for Global Cultural Cooperation’, The Conversation, 18 October, available at http:// theconversation.com/why-the-us-withdrawal-from-unesco-is-a-step-backwards-for -global-cultural-cooperation-85692 Greshko, M. (2017) ‘U.S. to Withdraw from UNESCO. Here’s What That Means’, National Geographic, 12 October, available at https://news.nationalgeographic.com /2017/10/united-states-us-withdraw-unesco-world-heritage-spd/ Guilford, G. (2013) ‘Shipwrecks are China’s Latest Approach to Claiming Disputed Territory’, Quartz, 3 December, available at http://qz.com/152716/shipwrecks-are -chinas-latest-approach-to-claiming-disputed-territory/ Kapoor, I. (2008) The Postcolonial Politics of Development. London: Routledge. Klabbers, J. (2014) ‘The Emergence of Functionalism in International Institutional Law: Colonial Inspirations’, The European Journal of International Law, 25(3), pp. 645–675. Kupchan, C.A. (2018) ‘The Clash of Exceptionalisms: A New Fight Over an Old Idea’, Foreign Affairs, 13 February, available at https://www.foreignaffairs.com/articles/ united-states/2018-02-13/clash-exceptionalisms Lixinski, L. (2013) Intangible Cultural Heritage in International Law. Oxford: Oxford University Press. Lixinski, L. (2015) ‘Heritage Listing as a Tool for Advocacy: The Possibilities for Dissent, Contestation and Emancipation in International Law through International Cultural Heritage Law’, Asian Journal of International Law, 5(2), pp. 387–409. Lixinski, L. (2020) ‘The Convention for the Safeguarding of the Intangible Cultural Heritage and Human Rights: Relativism and Collectivism 2.0?’, in J. Blake and L.

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Lixinski (eds.), The 2003 Intangible Heritage Convention: A Commentary, Oxford: Oxford University Press, pp. 463–477. Lixinski, L. (2021) Legalized Identities: Cultural Heritage Law and the Shaping of Transitional Justice. Cambridge: Cambridge University Press. Lynch, C. (2017) ‘U.S. To Pull Out of UNESCO, Again’, Foreign Policy, 11 October, available at https://foreignpolicy.com/2017/10/11/u-s-to-pull-out-of-unesco-again/ Lynch, C. and Groll, E. (2017) ‘As U.S. Retreats from World Organizations, China Steps in to Fill the Void’, Foreign Policy, 6 October, available at https://foreignpolicy.com /2017/10/06/as-u-s-retreats-from-world-organizations-china-steps-in-the-fill-the-void/ Meskell, L. (2018) A Future in Ruins: UNESCO, World Heritage, and the Dream of Peace. New York: Oxford University Press. Nayeri, F. (2018) ‘Return of African Artifacts Sets a Tricky Precedent for Europe’s Museums’, The New York Times, 27 November, available at https://www.nytimes.com /2018/11/27/arts/design/macron-report-restitution-precedent.html Psychogiopoulou, E. (2018) ‘Cultural Heritage in European Union Law and Policies’, Legal Issues of Economic Integration, 45(2), pp. 177–198. Rosenberg, E. and Morello, C. (2017) ‘U.S. Withdraws from UNESCO, the U.N.’s Cultural Organization, Citing Anti-Israel Bias’, Washington Post, 12 October, available at https://www.washingtonpost.com/news/post-nation/wp/2017/10/12/u-s-withdraws-from -unesco-the-u-n-s-cultural-organization-citing-anti-israel-bias/ Russett, B.M. and Sullivan, J.D. (1971) ‘Collective Goods and International Organization’, International Organization, 25(4), pp. 845–865. Shepherd, R. (2006) ‘UNESCO and the Politics of Cultural Heritage in Tibet’, Journal of Contemporary Asia, 36(2), pp. 243–257. Smithsonian Center for Folklife and Cultural Heritage (n.d.) available at https://folklife.si .edu/ Sputnik International (2017) ‘“UNESCO Just the Beginning”: China Set to Take US’s Place in Int’l Organizations’, Sputnik International, 13 October, available at https:// sputniknews.com/analysis/201710131058209426-unesco-us-china-analysis/ Stefano, M.L. (2016) ‘Critical Heritage Work: Public Folklore in the United States’, International Journal of Heritage Studies, 22(8), pp. 585–587. Stiglitz, J.E. (1995) ‘The Theory of International Public Goods and the Architecture of International Organizations’, in Background Paper No. 7 for the High-Level Group on Development Strategy and Management of the Market Economy, 3rd Meeting, Helsinki, Finland, 8–10 July 1995, UNU/WIDER, pp. 1–9. The Guardian (2016) ‘Japan Halts UNESCO Funding Following Nanjing Massacre Row’, The Guardian, 14 October, available at https://www.theguardian.com/world/2016/oct /14/japan-halts-unesco-funding-nanjing-massacre-row UNESCO (2012) ‘Memorandum of Understanding’, UNESCO, 8 October, available at http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/BSP/pdf/UNESCO-EU _MoU_8_October_2012.pdf UNESCO (2019a) ‘Intangible Cultural Heritage Lists: Kankurang, Manding Initiatory Rite’, available at http://www.unesco.org/culture/ich/en/RL/kankurang-manding-initiatory-rite -00143 UNESCO (2019b) ‘UNESCO-European Union Partnership’, available at https://en.unesco .org/UNESCO-EU-Partnership?language=en UNESCO (2019c) ‘UNESCO-European Union Partnership: Examples of Cooperation’, available at https://en.unesco.org/node/248272?language=en UNESCO (2019d) ‘World Heritage List’, available at http://whc.unesco.org/en/list

The New Standard of Civilisation? 35 UNESCO (2019e) ‘World Heritage List Statistics’, available at http://whc.unesco.org/en /list/stat UNESCO (2019f) ‘World Heritage List: Tentative Lists (China)’, available at https://whc .unesco.org/en/tentativelists/state=cn UNESCO (2019g) ‘World Heritage List: Tentative Lists (Italy)’, available at https://whc .unesco.org/en/tentativelists/state=it Vandellos Alamilla, J.F. (2018) ‘The Shifting Legal Landscape of Bullfighting in Spain’, LawInSport, available at https://www.lawinsport.com/topics/articles/item/the-shifting -legal-landscape-of-bullfighting-in-spain Voon, T. (2007) Cultural Products and the World Trade Organization. Cambridge: Cambridge University Press. Winter, T. (2015) ‘Heritage Diplomacy’, International Journal of Heritage Studies, 21(10), pp. 997–1015. Yan, H. (2018) World Heritage Craze in China: Universal Discourse, National Culture and Local Memory. New York: Berghahn Books.

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The United States, China and the European Union at the UN Human Rights Council Trilateral Dynamics over International Human Rights Norms, Institutions and Politics Yu-Jie Chen

Introduction The United Nations (UN) Human Rights Council (HRC or Council) was established in 2006 to promote “universal respect for the protection of all human rights and fundamental freedoms for all.”1 As one of the world’s most important intergovernmental human rights institutions engaged in multilateral diplomacy, the HRC provides an excellent window for examining the approaches of the United States (the US), the People’s Republic of China (PRC or China) and the European Union (the EU) towards global human rights governance as well as their impact. The Council is a large institution with 47 member states. Each member state, unsurprisingly, has its own interests in, and ideas about, international human rights protection. Contestations and contentions among them are inevitable. As the influence of the major powers in the international system ebbs and flows, the dynamics in the HRC also change. In recent years, many observers have been alarmed by China’s growing efforts to promote its own agenda in the HRC, though largely incompatible with global human rights principles (Human Rights Watch 2017, Piccone 2018). This concern was heightened when the US withdrew its membership from the Council in June 2018. The US’s exit occurred in the context of former President Donald Trump’s disengagement policy to generally decrease participation in and reduce funding for international organisations. Compared to the US and China, the EU, as an observer in the HRC, has been consistent in favouring strong international human rights protection in the current multilateral political-legal order, but has been criticised for failing to take effective actions to address global human rights problems. This chapter uses the HRC as a prism to examine the trilateral dynamics between the US, China and the EU over international human rights norms, institutions and politics and the impact these dynamics have on the multilateral human rights system. It first offers necessary, brief background on the HRC, with special attention to its composition and politics. In particular, it discusses the approaches DOI: 10.4324/9781003167358-4

The US, China and the EU at the UN HRC 37 of the US, China and the EU towards the HRC since its creation in 2006 as well as their interaction in the larger context of the Council’s political environment. I then analyse the immediate and potential implications of the current situation for the global protection of human rights. Before concluding the chapter, I give an assessment on how the world can sustain a robust multilateral regime of human rights in light of the current political dynamics.

The United Nations Human Rights Council The HRC was established by the UN General Assembly in 2006 to replace the UN Commission on Human Rights, which had been frequently faulted for its politicisation, lack of credibility and failures in fulfilling its mandate (UN Secretary-General 2005). It was hoped that a new organisation with different institutional arrangements would be able to play a more effective role in truly preventing government abuses and promoting universal respect for human rights. The negotiations to set up the Council were contentious, involving all UN member states with vastly different proposals. The main point of contention surrounded the question of who could be seated on the Council. In particular, the US and the EU favoured stricter criteria for membership (to exclude states with atrocious human rights records) as well as higher electoral requirements (a two-thirds majority of UN member states). The US, specifically, insisted that the Council be a small institution for the purpose of effective operation. On the other hand, China, along with many other states, supported the proposal of a larger body that would give widespread geographic representation. They also preferred less rigorous membership criteria as well as a lower electoral threshold (Lyons 2006). After some drawn-out discussions and compromises, the latter position won the most support in the General Assembly. The HRC is mandated to have 47 members (almost 25% of all UN member states), with membership distributed among five regional groups: African States (13 seats), Asia-Pacific States (13 seats), Latin American and Caribbean States (8 seats), Western European and other States (7 seats) and Eastern European States (6 seats). In addition, the election of states to the HRC requires only a simple majority vote of all member states of the General Assembly through direct and secret ballots. The member states are elected for staggered three-year terms with the prospect of serving two consecutive terms. The HRC was created with the expectation that it would address the institutional problems that had plagued the UN Commission on Human Rights. In reality, however, many challenges proved to be persistent, especially the problem of seating member states that have been commonly considered human rights abusers, including China, Cuba, Pakistan, the Russian Federation and Saudi Arabia, among others. The Council, like its predecessor, has also been criticised for rising politicisation, ineffectiveness and inability to act in some egregious cases (Chauville 2015, Freedman 2011). Despite these flaws, the HRC has a number of important mandates that can make an impact, the two most frequently used being (1) issuing resolutions concerning human rights conditions in individual states (“country-specific resolutions”) as

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well as concerning general human rights standards and (2) holding the Universal Periodic Review (UPR), a global mechanism in which each state’s human rights performance is periodically examined by other states. In addition, the Council has more than 50 “Special Procedures,” which consist of independent human rights experts or working groups concerned with the monitoring of thematic human rights issues and the situation of individual countries (Special Procedures of the Human Rights Council). The Special Procedures have a mandate to operate independently and are less vulnerable to political influence. As the focus of this chapter is trilateral relations between the US, China and the EU in multilateral human rights diplomacy, I direct the subsequent discussion to the political processes — mainly controlled by state actors — underlying the Council’s making of resolutions and UPRs.

Trilateral Dynamics in the Human Rights Council The three actors vary greatly in their human rights agendas and approaches towards the HRC and, more broadly, global human rights governance. Furthermore, the US government and the PRC leadership have experienced significant changes in their own approaches over time. The United States While the US government has, by and large, maintained a policy of promoting human rights and liberal values in the international order, at least rhetorically, its actual support for the HRC has fluctuated under different administrations. In 2006, the George W. Bush administration voted against the General Assembly resolution creating the Council because, as previously mentioned, the US proposals for the Council composition were not adopted. The administration then decided not to run for the Council membership and further withheld US funding to the Council (US Congressional Research Service 2019). The US government was reportedly concerned about losing the HRC election due to the administration’s human rights record, which had already attracted severe criticisms for documented torture and other human rights violations in the Abu Ghraib prison and the Guantanamo Bay detention camp. The Obama administration reversed this position, favouring US participation to make the Council “a more effective body” (US Department of State 2009). Accordingly, the US was elected as member in 2009 for two terms (2009–2015). It was elected for a third term in 2016 when President Obama was still in office. While the Obama administration’s human rights legacy was marred by some less than robust policies (Roth 2017), its active engagement in the multilateral human rights framework was noteworthy. The US approach experienced another reversal when the Trump administration withdrew from the HRC in June 2018, citing concerns that there was a chronic bias against Israel in the Council and that countries with abysmal human rights records continued to be elected as members. China, Russia, Cuba and Egypt were

The US, China and the EU at the UN HRC 39 singled out for undermining the US-led efforts to reform the Council. While the US government is no longer a member, it has not entirely boycotted the Council and, as do other non-member states, has continued to participate in some Council activities, including the UPRs. A year after the withdrawal from the HRC, the Trump administration established a domestic “Commission on Unalienable Rights,” whose charter made no mention of the Universal Declaration of Human Rights and which held a conservative position on issues of abortion and same-sex marriage (Wright 2019). Biden’s 2020 election as president has brought yet again another reversal in US human rights policy. In addition to pledging to re-engage with other international treaties and organisations that Trump’s administration had neglected or abandoned, the Biden administration has already successfully secured a seat at the HRC as a full member (2022-2024). The People’s Republic of China By contrast, the PRC, having been repeatedly targeted for censure in the UN Commission on Human Rights for its 1989 massacre of Tiananmen Square protestors, has been an active participant before and after the establishment of the HRC. China’s participation, however, has often been oriented towards restricting the Council’s operation to avoid human rights scrutiny. In the 2006 negotiations creating the Council, the PRC proposed to eliminate country-specific resolutions (Piccone 2018), a mechanism that the Commission on Human Rights used to condemn blatant violations of human rights in specific countries. This attempt, which was opposed by the US, the EU and other countries, proved to be unsuccessful. The PRC sought a seat at the Council from the very beginning. It was a Council member for the first two terms (2006–2012), followed by a necessary year’s absence, and renewed a two-term membership (2013–2019). Again, after a year’s absence, China has been elected as a member (2020–2023). The first two terms took place under the Hu Jintao and Wen Jiabao administration, whose general approach, both in the earlier Commission on Human Rights and then in the HRC, remained relatively low-profile, “rarely asserting its own individual position” (Sceats & Breslin 2012). The General Secretary of the Chinese Communist Party Xi Jinping’s ascension to power in late 2012, however, marked a dramatically different policy direction, not only in China’s domestic governance, but also in its ambitions and posture towards global governance. China’s voice began to be heard more frequently in various international platforms, growing along with its increasing financial contributions to international organisations (Okano-Heijmans & Putten 2018). China is beginning to take a leading role in the generation of HRC resolutions and is energetically lobbying its allies to praise China’s human rights performance in the UPRs. Its increasing outward confidence, however, has been accompanied by ever more serious human rights abuses at home, including crackdowns targeting rights activists and lawyers. It

40 Yu-Jie Chen has set up internment camps in the Xinjiang region of northwest China that have reportedly detained more than one million of China’s Muslim citizens while keeping the rest of the society under strict surveillance (Zenz 2019, Roberts 2020) as well as transferring ethnic minorities out of Xinjiang and into forced labour (Xu et al. 2020). The European Union Compared to the US and China, the EU remains a steadfast actor in the international human rights system. Its agenda has been consistent in seeking to uphold the multilateral, rules- and rights-based international order by active engagement. In the negotiations to create the HRC, while the EU took an almost identical position to that of the US in demanding higher membership and electoral standards, it eventually accepted the compromise supported by the General Assembly majority (Brantner & Gowan 2009). As an observer in the UN and in the HRC, the EU cannot vote but has dynamically engaged itself by other means, including making interventions, issuing statements, sponsoring resolutions and lobbying countries during the voting process. While the EU appears to be a principled actor in general, its record is not entirely without question. The EU’s alignment with the US sometimes puts it in an awkward position when it comes to human rights violations in the US. It was, for example, unwilling to support proposed resolutions in the Council against the US regarding detainees in Guantanamo Bay (Brantner & Gowan 2009). Trilateral Dynamics in the Context of Political Coalitions Member states of the Council rely on coalitions to achieve their agendas, since any Council action requires the support of its members by consensus and, if a consensus cannot be reached, then a majority vote. A state’s influence in the Council is often determined by how many other members it can mobilise to reach a consensus or produce a successful vote. There are various natural alliances within the international regime that operate as hubs for HRC coalition-building, such as regional groups and political groups that exist in the larger context of the UN. There are also coalitions that have formed in the practice of the Council, such as the “Like-Minded Group” (LMG),2 described below. As mentioned earlier, in the formation of the Council, the PRC supported widespread geographic representation. As a result, the largest representation (55%) comes from African and Asia-Pacific States (a total of 26 seats), whose voting behaviour in the Council tends to align with that of China, rather than that of the US and the EU (Okano-Heijmans & Putten 2018). By contrast, the EU (27 members after Brexit), as one of the many political groups that operate in the UN in the service of the common interests of their members,3 is connected to two regional groups that have fewer seats in the HRC, i.e. Western European and other States and Eastern European States (a total of 13 seats).

The US, China and the EU at the UN HRC 41 Moreover, China’s advantage over the US and EU in terms of political support in the HRC is demonstrated by its collaboration with the most powerful group in the Council — the coalition of LMG, which consists mostly of authoritarian governments as well as developing countries, including Russia, Cuba, Egypt, Saudi Arabia, Pakistan, India and South Africa, etc. The practice of bloc voting by this coalition has come to overshadow the agenda of the HRC in recent years, frequently impairing effective scrutiny of human rights issues in the Council. LMG members often “horse-trade,” voting to shield members from international censure in exchange for their support on issues of concern to themselves. Given the strong alliance formed between China and other countries in the LMG, the US 2018 withdrawal from the Council was a great disappointment to the EU and those who hoped that liberal democracies could play a meaningful role in checking the expansion of authoritarianism in the international human rights system. The EU saw the move of the Trump administration as “undermining the role of the United States as a champion and supporter of democracy on the world stage” (EEAS 2018). While the Biden administration has re-engaged with the HRC, it remains to be seen in what ways and to what extent the US 2018 withdrawal and its re-engagement that follows will affect the Council’s work over the long term. There were already some consequences of the US departure, however. The US government lost its voice in important decisions made by the Council members, and other actors in the HRC that usually partnered with the US, including the EU, lost an important, reliable ally critical to rally forceful support. More profoundly, Washington’s withdrawal symbolised a weakened voice of democracies and a morale boost to China, Russia and other authoritarian countries in the LMG. The Trump Administration’s accusation that the Council was politicised, while true, was unconstructive when it quit the organisation and did nothing but further sully the Council’s reputation. Although the Biden administration has returned to the HRC, damage to the HRC’s credibility has already been done. The EU and its members, particularly Germany and France, have been routinely outspoken in cases of China’s human rights violations. The EU has consistently opposed China-sponsored resolutions in the HRC and refused to be co-opted during China’s UPRs, when it was pressured to remove criticisms. However, it is at present challenging for the EU and other actors to vigorously resist China’s authoritarian push. The past years have seen an EU torn by Brexit and weakened by a moral crisis in terms of how to deal with massive, unwanted immigration flows. Probably most importantly, economic uncertainties, especially during the Covid-19 pandemic, have also heightened the importance of trade links to China. All these developments have happened against the backdrop of democratic backsliding on a global scale. On the other hand, the US withdrawal from the HRC seems to have raised awareness in the EU of the importance of undertaking a more active, leading role in preserving the current international regime, as recently demonstrated in the European Council’s Conclusions on EU Action to Strengthen Rules-Based

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Multilateralism (2019). With this political declaration, the EU reaffirms the pledge to continue its support for multilateralism and to promote international human rights protection. In regards to China, the EU’s policy appears to be undergoing what observers describe as a transformation. In 2019, the European Commission adopted a new Strategic Outlook on China, describing China as “a negotiating partner with whom the EU needs to find a balance of interests, an economic competitor in the pursuit of technological leadership and a systemic rival promoting alternative models of governance” (emphasis mine). The unprecedented depiction of China as a “systemic rival” signals a conceptual change in EU-China relations (Brattberg & Le Corre 2020). While this change may have been driven by the EU’s realisation that it is being taken advantage of by China economically, it also reflected more EU voices critical of China’s increasingly repressive human rights practices.

Adverse Implications for International Human Rights Norms, Institutions and Politics Under international law, human rights are universal and inalienable. They are also indivisible, interdependent and interrelated, meaning that all rights cannot be positioned in a hierarchical order. Protection of human rights requires accountability — that is, human rights violations are not seen as simply “domestic affairs” and states and other duty-bearers should be held accountable for their human rights abuse. The international human rights system also highly values the participation of civil society, which contributes significantly to monitoring human rights practice. The above norms and values are deeply embedded in the post-war international human rights regime. However, as discussed below, China’s flagship discourse, “Human Rights with Chinese Characteristics,” tends to diminish notions of individual rights and government accountability. It also serves the strategic purpose of justifying Beijing’s departure from universally agreed-upon principles under the guise of rejecting “Western” notions of human rights. In addition, China prioritises development over other rights and insists on a sovereign-central position. This chapter argues that Beijing’s practice is posing a greater than ever challenge to the work of the HRC and international human rights protection in the following three aspects. Norms China has consistently resorted to what it calls “Human Rights with Chinese Characteristics”4 as a distinctive Chinese theory of human rights to contest international human rights norms. The meaning of Human Rights with Chinese Characteristics may be contingent on the particular agenda of the Chinese leadership at any given time, but Beijing has indeed repeatedly expressed certain ideas about human rights that are distinctive (Chen 2019). First, underlying this discourse is a cultural relativist argument to justify China’s departure from conventional human

The US, China and the EU at the UN HRC 43 rights principles. In the official rhetoric, “Chinese Characteristics” are usually tied to “national conditions,” which is meant to highlight China’s differences from other countries, particularly Western liberal democracies. Second, Beijing’s notions of sovereignty and non-interference are expansive and are invoked by Chinese officials liberally to fend off international scrutiny. It views any criticism of its human rights record as interference with China’s domestic affairs, and international condemnation of its frequent arbitrary detention of Chinese activists is seen as an infringement of China’s “judicial sovereignty” (Kinzelbach 2015, pp. 320–323). Third, Beijing sees development as its priority in human rights. It has proposed that civil and political rights must hinge on the level of overall social development. In setting up the nation’s development programmes, the government adopts a top-down approach, allowing little bottom-up society participation, public discussion and different voices, which is consistent with Beijing’s interest in promoting the nation’s economic development as a source of the Party’s legitimacy while minimising dissent. Especially in recent years, the Chinese government has ramped up efforts to promote its own views as an alternative model to the common understanding of international human rights, particularly to an audience of developing countries and authoritarian governments. Its present normative thrust in the HRC pursues at least two objectives: (1) establishing a development-first programme and (2) advancing a statist view in matters of human rights.5 They have been reflected in the Council resolutions initiated by China in 2017, 2018, 2019, 2020 and 2021. In 2017, China unusually introduced a solo-sponsored resolution in the Council, entitled “The Contribution of Development to the Enjoyment of All Human Rights.”6 This resolution was apparently the first one in the HRC that focused entirely on the issue of development, and Chinese media praised the resolution as a “China Solution” to global human rights governance. While the resolution appeared innocuous in wording, some human rights observers criticised it for framing the right to development in the service of states, not of people (Piccone 2018). The criticism was based on Beijing’s track record of prioritising a statecentred development programme while marginalising human rights concerns in the name of economic development and social stability. Despite these concerns, the resolution, with the backing of many co-sponsors, including Cuba, Egypt, Russia and Saudi Arabia, etc., was adopted by a recorded vote of 30 to 13, with 3 abstentions (RightDocs 2017).7 Those that voted against it were the US, EU members and their allies, who were outnumbered by the LMG states. In 2019 and 2021, China was again the sole sponsor of two resolutions under the same title. The resolutions built on the 2017 resolution on development but further emphasised the need to end poverty as an indispensable requirement for sustainable development. These resolutions, which will likely be followed by similar versions in the years to come, apparently demonstrated China’s agenda to mainstream an economic development-first view in the global human rights agenda. In April 2018, China successfully introduced another solo-sponsored HRC resolution entitled “Promoting Mutually Beneficial Cooperation in the Field of Human Rights,”8 which reflected its traditional state-centred position, as opposed

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to the rights-based, individual-centred approach. The resolution was touted in the official PRC media as symbolising “China’s growing influence and ability to set the agenda in international human rights governance” (Permanent Mission of China to the UN Office at Geneva and Other International Organizations in Switzerland 2017). The resolution — calling for states to engage in intergovernmental cooperation on human rights — apparently dovetailed with China’s intensified efforts to cooperate with developing countries in the area of development. Observers and human rights activists viewed the resolution with suspicion, as its wording, which centred on intergovernmental cooperation and dialogue, suggested another attempt to put states at the centre of human rights work and to marginalise accountability and international scrutiny (Worden 2018b; Fisher 2018). Furthermore, the Chinese government has long treated cooperation and dialogue as an alternative approach to international scrutiny and criticisms that expose human rights violations (Kinzelbach 2015). Yet, the resolution was similarly co-sponsored by many other authoritarian and developing states and passed by a recorded vote of 28 to 1, with 17 abstentions. Abstaining from the vote were largely EU members and their allies while the US government was the only member casting “no” (RightDocs 2018).9 Again, in 2020 and 2021, China solo-sponsored two resolutions under the same title “Promoting Mutually Beneficial Cooperation in the Field of Human Rights.” The resolution, built on the 2018 resolution, expanded its content significantly. Yet, among the added language in the 2020 resolution, for example, probably the most important and controversial is the following clause: “[r]ecognizing the importance of ensuring universality, objectivity and non-selectivity in the consideration of human rights issues, and the elimination of double standards and politicization” (emphasis mine). “Double standards” is often used by Beijing and other autocracies to delegitimise criticisms about their human rights violations as well as to derail discussion of the violations in question. Equally controversial in the 2020 resolution is the new language “[r]eaffirming that each State has the inalienable right to choose freely and develop, in accordance with the sovereign will of its people, its own political, social, economic and cultural systems, without interference from any other State or non-State actor” (emphasis mine). The Chinese government’s notions of sovereignty and noninterference are wide-ranging. They are also often used as a rhetorical device by Beijing to evade human rights criticisms. Institutions Despite or, arguably, because of, its growing power in world politics, Beijing is ultra-sensitive to public condemnation and goes to great lengths to stifle voices critical of its actions (Human Rights Watch 2017). It does so by weakening and/ or disempowering international human rights actors and institutions; preventing genuine civil society participation in the monitoring processes, especially that of Chinese activists; harassing treaty body experts and UN officials; and distorting Council procedures (Chen 2019).

The US, China and the EU at the UN HRC 45 In the three UPRs China has undergone (in 2009, 2013 and 2018), for example, the government has mobilised a great number of authoritarian regimes and developing countries, such as Cuba, Pakistan, Russia, Saudi Arabia, Ukraine, Uganda, Venezuela, Uzbekistan and Yemen, etc., to lavish high praise on China’s achievements in human rights (“Universal Periodic Review: China”; Chen 2019, Lewis 2020).10 China has apparently used this tactic to legitimatise its practice and to dilute condemnations of countries that are generally critical of China’s human rights violations, such as the US, the United Kingdom, Canada and Germany. The tactic, which has now become China’s standard modus operandi, reduces the effectiveness of the UPRs.11 In the most recent UPR in 2018, China again lined up countries that would not condemn China so that those that would had less time to voice criticisms – each state ended up with only 45 seconds for oral presentation. Despite limited time, some countries, including the US, some EU member states and other democratic governments, managed to raise serious issues about Xinjiang’s internment camps and the treatment of human rights defenders and lawyers. In response, China’s delegate stated, We will not accept the politically driven accusations from a few countries that are fraught with biases, and in total disregard of facts; even less will we entertain attempts to use human rights as an excuse to interfere in China’s internal affairs or undermine its sovereignty and territorial integrity. (Worden 2018a) In addition, China has sought to muffle the voices of domestic and international independent NGOs and activists. In the Council, it has made domestic government-organised non-governmental organisations (GONGOs) speak in favour of China’s performance in order to crowd out the participation of independent NGOs.12 China has also frequently prevented domestic activists from taking part in international processes by blocking them from leaving the country or placing them in detention. In 2013, Shunli Cao, a Chinese activist, was stopped by police when attempting to attend China’s UPR. She was subsequently arrested on the charge of “picking quarrels and provoking troubles” and died in custody in 2014. These efforts by the PRC (often in collaboration with other countries) frustrate the operation of the international human rights system, and, even if not entirely successful, serve to create an inhibiting and intimidating atmosphere that restrains good-faith actors striving to work within the system, especially civil society groups and activists. Politics The combination of Beijing’s discourse and tactics further polarises politics in international human rights institutions, especially those that are susceptible to political manoeuvres such as the HRC.

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China’s present leadership is seeking to widen the chasm between China and Western-style governments with repeated discourse on “Chinese Characteristics,” which, as mentioned, is essentially a cultural relativist argument that seeks to undermine the human rights project without engaging on first principles. This line of argument is not new. It harkens back to the now familiar perspective of “Asian Values.” Chinese leaders vigorously supported Asian Values when the notion was promoted by leaders of Singapore, Malaysia and Indonesia in the 1990s (Barr 2000). Indeed, while China acknowledged the universality of human rights in the 1993 Vienna Declaration and Program of Action, it has sought to limit that universality both at home and abroad. There have also been incidents wherein the Chinese Party-State seems to completely renounce the principle of universality, including a leaked CCP Central Committee directive in 2013 that listed “universal values” of human rights as one of the “seven perils” that the Party must combat in maintaining its power (Buckley 2013). In China’s current rhetoric, the liberal philosophy embedded in the international human rights system as well as the global collective efforts of international and domestic civil society behind it are crudely reduced to Western values that are simply unsuited for the Chinese ways of life. Human rights are dismissed as nothing but a political ploy of “foreign hostile forces” designed to interfere with China’s domestic affairs. This approach invites antagonism against “the other side,” hardens the polarisation of views and fuels divisive international politics. Moreover, China has actively projected itself as the leader representing the interests of the Global South. This is an important part of China’s efforts to build a voting bloc coalition with developing countries and autocracies. In this polarised environment, compromises are hard to make and unifying consensus hard to reach. Human rights discussion is often diminished to a matter of “choosing sides” rather than deciding issues on the merits.

Response to the China Challenge Faced with this China challenge, the EU and its member states as well as the US have begun to reckon with it, but they appear to be left with limited policies, resources and means for a solution. Engagement and cooperation, the oft-mentioned strengths of the international human rights system, do not appear efficacious with present-day China. The engagement approach has been a largely ineffective exercise when facing a government that simply refuses to be engaged. The inter-state and “track one and a half” dialogues between Beijing and other countries appear to favour Beijing’s goal of cabining human rights issues into quiet, closed-door meetings more than serious exchanges that might stimulate meaningful reforms. As long as Beijing avoids any genuine discussion of its human rights practices, the exercises that purport to examine its human rights record — often filled with recitations by Chinese officials of laws, regulations and other unenforced measures — are nothing more than window-dressing (Kinzelbach 2015). In the most recent EU-China Human Rights Dialogue, for example, when the European delegates raised

The US, China and the EU at the UN HRC 47 concerns about internment camps in Xinjiang, the issue was left unaddressed by the Chinese side, which instead emphasised China’s achievements in economic, social and cultural rights and the need to respect China’s interpretation of human rights based on its national conditions (European Interest 2019).13 Furthermore, China is expanding influence on global human rights practice, not only at the HRC but also through other platforms such as the Beijing-led South-South Human Rights Forum. It is intensifying the efforts to export its statecentred, growth-first view that does not restrain government abuses during the process of development. The problems with this view are illustrated by the PRC’s numerous cases of forced demolition and land taking; its extremely unequal sharing of the benefits of development, especially for disadvantaged groups; its disrespect for economic, social and cultural rights; and its relentless suppression of civil and political rights, including civil society efforts to expose corruption and complaints about the failings of the development programme. Genuine human rights cooperation between China and the US as well as the EU member states also seems unlikely at present. China often accuses the West of being “anti-China” and of using human rights as a pretext for intervening in China’s internal affairs. In this rhetoric, not only the West but the concept of human rights, itself, are stigmatised. “Western human rights ideas” are said to be harmful and not suitable for the East. This view overlooks the fact that many values of the international human rights system are the collective efforts of many countries and their civil societies, rather than those of merely a few countries or regions. It also conveniently ignores the successful development of Asian countries that largely protect civil and political rights as well as economic, social and cultural rights, including neighbouring Japan, South Korea and Taiwan. This rhetoric is apparently deepening the North-South divide as opposed to bringing about genuine inter-state cooperation. It is time to adopt another approach. While engagement and cooperation by the US, the EU and the broader international society should be encouraged to continue with independent Chinese domestic civil society groups, especially at a time when they are under attack and in need of international support, a different strategy is needed to address continuing attacks on human rights by the Chinese government. The US and EU (along with other democracies and non-state stakeholders in Asia and beyond) should adopt a strong proactive approach of defence and a unified affirmation of human rights values before genuine cooperation can take place. This begins with a heightened awareness of Beijing’s human rights practices and its perils to international norms, institutions and politics. Indeed, there is a growing realisation of, and even hostility toward, China’s global agenda. This sentiment does not always concern China’s human rights record; often, it is inspired by nationalistic political concerns and worries about economic competition. However, China’s human rights practice is under increasing scrutiny, albeit not quickly enough, and its aggressive push into the international human rights system will likely shine more light on China’s most troubling rights practices.

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International society must also present serious critique of the fundamental flaws in Beijing’s discourse whenever warranted; otherwise, the international system runs the risk of normalising ideas that are in contradiction with its own core principles. This starts with raising an important question to China’s assertion of “Human Rights with Chinese Characteristics”: who are the “Chinese” who can represent “Chinese Characteristics”? In 2013, after the PRC’s second UPR, the Chinese delegation in response to international criticisms stated: “Whether the shoes fit, only the person knows … The Chinese are in the best position to know the situation of human rights in China” (HRIC 2013). But who are the Chinese whom the PRC claims really know the reality of human rights in China? “Chinese” should surely include the diversity of voices in Chinese civil society, but the Party-State is determined to maintain absolute control over the kinds of voices that can represent China to an international audience. There is no reason to believe that the view of Chinese leaders is more “Chinese” than that of Chinese NGOs, human rights advocates and ordinary petitioners who seek redress for the injustice they experience. The notion of Human Rights with Chinese Characteristics is fictional and unconvincing when the Chinese government tries to use it to mute its own country’s independent civil society voices. Beijing’s deployment of culturally relativist discourse pokes Western countries in a sensitive area in light of their colonial past, which in part explains the effectiveness of this discourse in diminishing critical voices of Western intellectuals and politicians. Yet, Beijing’s discourse must be questioned seriously for failing to appreciate the cultural malleability of the society and the agency of Chinese groups and individuals who have worked hard to use generally accepted human rights norms to check government abuse. Beijing’s discourse must also be questioned for its selectivity. When the government engages in trade and economic matters or when it seeks to influence developing countries, its approach features what appears to be a cosmopolitan view and an adaptive ability. But when it comes to human rights, it shifts to a rigid insistence on “culture.” While it is possible that there may sometimes be genuine cultural impulses underlying Beijing’s statements, the government’s relativist rhetoric is selectively employed for political convenience, and should be flagged as such. It is useful here to recall that the international human rights system is not a product of the US and a few European countries working in the service of imperialist goals, as often portrayed by Beijing and others. In their own struggles, politicians and activists from other countries have played an important role in the making of the post-war human rights system (Sikkink 2019). The remarkable Universal Declaration of Human Rights was the result of a common agreement on the need to prevent a recurrence of the horrors of the Second World War and to make the world a better place. The drafting participants from different backgrounds and countries recognised the need for the Declaration to embody universal values, taking into account different cultures while maintaining the basic

The US, China and the EU at the UN HRC 49 levels of protection that all can agree on. Among the most active participants of the drafting group, including Eleanor Roosevelt, Charles Malik and René Cassin, was Pengchun Chang, a diplomat from the Republic of China and a Chinese philosopher and educator. His important contribution to the Universal Declaration of Human Rights has been increasingly recognised, including his efforts to introduce the Chinese concept of “two-man mindedness” (or “consciousness of one’s fellowmen” or “sympathy”) as an essential human attribute (Glendon 2002). In honour of this spirit, the international human rights system as well as the important actors, including the US and the EU, should continue to operate in ways that promote a global cultural identity that is inclusive and forward-looking. While respectful of different cultures, they should prevent the erosion of the system’s core principles that seek to empower individuals and restrain government abuse. They should also confidently uphold human rights values that are an embodiment of this inclusive global identity. Eventually, however, achieving the formidable goal of promoting universal respect for human rights still requires meaningful cooperation from the PRC. China is no longer a victimised nation subject to imperialist invasion and colonisation. The Chinese government must demonstrate a new attitude that truly lives up to its own rhetoric about China now being a great power. With great power comes the great responsibility to foster constructive developments in an inclusive international order, rather than playing what can be understood as tribal politics, portraying today’s China as a victim of foreign interference and manipulating “Chinese Characteristics” while silencing domestic dissents.

Conclusion The dynamics in the HRC have changed in recent years with a rising China that is ambitiously taking a leading role to push for an authoritarian agenda. In the meantime, the US, due to drastic policy differences between Democratic and Republican administrations, has vacillated in its role in global human rights governance. The EU, while consistent in seeking to preserve the rules- and rightsbased international order in the multilateral system, is confronted with increasing challenges in the current world power dynamics that favour China. For the multilateral human rights regime, the new US administration’s re-engagement is a welcome step, which is likely to reinforce the pushback against the authoritarian agenda. But the swings in the US human rights agenda represent the vastly different policy priorities of Republicans and Democrats and can be expected to recur in the future. This lack of a consistent policy towards international institutions creates opportunities that can be exploited by powerful authoritarian states, including China, to push their own scheme. The agenda of the HRC has in recent years been muddled by the LMG, which China works with closely to advocate its distinctive human rights ideas that are in tension or direct contradiction with conventional human rights values. Beijing’s rhetoric often depicts the US and EU as “foreign hostile forces” that seek to

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intervene with China’s domestic affairs “on the pretext of human rights.” Its position not only diminishes the scrutiny of the multilateral human rights system but also stigmatises the very idea of human rights. The conventional approach of engagement or cooperation has proved largely ineffective with the Chinese government, especially the current leadership. The US and the EU as well as other democracies in Asia and beyond must adopt a new approach that focuses on consolidating and forging alliances to push back on China’s authoritarian advances and to assertively defend the integrity of the international human rights system.

Notes 1 UN General Assembly, Resolution 60/251, 3 April 2006. 2 See ‘The Human Rights Council: A Practical Guide’, https://www.eda.admin.ch/dam /eda/en/documents/publications/InternationaleOrganisationen/Uno/Human-rights -Council-practical-guide_en 3 Ibid. Other political groups include the Non-Aligned Movement (NAM, 120 members), the Organization of Islamic Cooperation (OIC, 57 members), the League of Arab States (21 members) and the African Union (53 members). 4 See, e.g. China’s 2013 and 2018 UPR reports (‘Universal Periodic Review: China’). 5 This and the following three paragraphs are adapted from Chen 2019, pp. 1204–1208. 6 See UN Human Rights Council, https://www.ohchr.org/en/hrbodies/hrc/pages/home .aspx 7 Countries that voted in favour of the resolution included Bangladesh, Bolivia (Plurinational State of), Botswana, Brazil, Burundi, China, Congo, Côte d’Ivoire, Cuba, Ecuador, Egypt, El Salvador, Ethiopia, Ghana, India, Indonesia, Iraq, Kenya, Kyrgyzstan, Mongolia, Nigeria, Philippines, Qatar, Rwanda, Saudi Arabia, South Africa, Togo, Tunisia, United Arab Emirates and Venezuela (Bolivarian Republic of). Those that voted against it were Albania, Belgium, Croatia, Germany, Hungary, Japan, Latvia, Netherlands, Portugal, Slovenia, Switzerland, United Kingdom of Great Britain and Northern Ireland and United States of America. Abstentions included Georgia, Panama and Republic of Korea. The delegation of Paraguay did not cast a vote. 8 Supra note 6. 9 Countries that voted in favour of the resolution included Angola, Brazil, Burundi, Chile, China, Côte d’Ivoire, Cuba, Democratic Republic of the Congo, Ecuador, Egypt, Ethiopia, Iraq, Kenya, Kyrgyzstan, Mexico, Mongolia, Nepal, Nigeria, Pakistan, Panama, Philippines, Qatar, Saudi Arabia, Senegal, South Africa, Togo, United Arab Emirates and Venezuela. Those that abstained included Afghanistan, Australia, Belgium, Croatia, Georgia, Germany, Hungary, Japan, Peru, Republic of Korea, Rwanda, Slovakia, Slovenia, Spain, Switzerland, Ukraine and United Kingdom of Great Britain and Northern Ireland. 10 The UPR, unlike the assessment conducted by independent Special Procedures or the independent evaluation of a state’s human rights record in a treaty review, is essentially a political process. As a result, it allows greater scope for diplomatic manipulation. This permits Beijing to engage in a broad range of political tactics in dealing with UPR challenges to its human rights record. 11 This and the following paragraph are adapted from Chen 2019, pp. 1198–1199. 12 Other examples of Beijing’s attempts to impede the operation of the international human rights system include its refusal to extend invitations for Special Procedures to conduct field visits to China and to control and surveil the activities of the human rights expert visitors and impede their investigation when such visits were conducted. 13 This and the following two paragraphs are adapted from Chen 2019, pp. 1217–1219.

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References Barr, M. (2000) ‘Lee Kuan Yew and the “Asian values” Debate’, Asian Studies Review, 24(3), pp. 309–334. Brantner, F. and Gowan, R. (2009) ‘Complex Engagement: The EU and the UN System’, in K.E. Jorgensen (ed.), The European Union and International Organizations, London: Routledge, pp. 37–60. Brattberg E. and Le Corre, P. (2020) ‘The EU and China in 2020: More Competition Ahead’, Carnegie Endowment for International Peace, February 19, available at carnegieen dowment.org/2020/02/19/eu-and-china-in-2020-more-competition-ahead-pub-81096. Buckley, C. (2013) ‘China Takes Aim at Western Ideas’, New York Times, 19 August, available at www.nytimes.com/2013/08/20/world/asia/chinas-new-leadership-takes -hard-line-in-secret-memo.html Chauville, R. (2015) ‘The Universal Periodic Review’s First Cycle: Successes and Failures’, in H. Charlesworth and E. Larking (eds.), Human Rights and the Universal Periodic Review: Rituals and Ritualism, Cambridge: Cambridge University Press, pp. 87–108. Chen, Y-J. (2019) ‘China’s Challenge to the International Human Rights Regime,’ New York University Journal of International Law and Politics, 51, pp. 1179–1222. Council of the European Union (2019) ‘EU Action to Strengthen Rules-based Multilateralism- Council Conclusions’, 10341/19, Brussels,17 June 2019. https://data .consilium.europa.eu/doc/document/ST-10341-2019-INIT/en/pdf EEAS (2018) ‘Statement by the Spokesperson on the United States' Decision to Withdraw from the United Nations Human Rights Council’, Delegation of the European Union to the United States, 19 June, available at eeas.europa.eu/delegations/united-states-amer ica/46844/statement-spokesperson-united-states-decision-withdraw-united-nationshuman-rights-council_en European Interest (2019) ‘EU and China Dialogue on Human Rights’, European Interest, 2 April, available at europeaninterest.eu/article/eu-china-dialogue-human-rights/ Fisher, J. (2018) ‘China’s Win-Win’ Resolution Is Anything But’, Human Rights Watch, 4 March, available at https://www.hrw.org/news/2018/03/05/chinas-win-win-resolution -anything# Freedman, R. (2011) The United Nations Human Rights Council: A Critique and Early Assessment. London: Routledge. Glendon, M. (2002) A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights. New York: Random House. HRIC (2013) ‘UN Rights Review of China: Citizens’ Crucial Role’, Human Rights in China, 22 October, available at hrichina.org/content/6991 Human Rights Watch (2017) ‘The Cost of International Advocacy: China’s Interference in United Nations Human Rights Mechanisms’, Human Rights Watch, 5 September, available at www.hrw.org/report/2017/09/05/costs-international-advocacy/chinas -interference-united-nations-human-rights Kinzelbach, K. (2015) The EU’s Human Rights Dialogue with China: Quiet Diplomacy and Its Limits. London: Routledge. Lewis, M. (2020) ‘Why China Should Unsign the International Covenant on Civil and Political Rights’, Vanderbilt Journal of Transnational Law, 53 (2020), pp. 131–206. Lyons, S.R. (2006) ‘The New United Nations Human Rights Council’, The American Society of International Law Insights, 10(7), available at https://www.asil.org/insights/ volume/10/issue/7/new-united-nations-human-rights-council

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Okano-Heijmans, M. and Putten, F. (2018) A United Nations with Chinese characteristics? The Hague: Netherlands Institute of International Relations ‘Clingendael’, available at clingendael.org/sites/default/files/2018-12/China_in_the_UN_1.pdf Permanent Mission of China to the UN Office at Geneva and Other International Organizations in Switzerland (2017) ‘“Build a Community of Shared Future for Human Beings” Written into United Nations Human Rights Council Resolutions for the First Time’, 24 March, available at http://www.china-un.ch/eng/dbtyw/rqrd_1/speech/t1448593.htm Piccone, T. (2018) China’s Long Game on Human Rights at the United Nations. Washington, DC: Brookings Institute, available at www.brookings.edu/wp-content/ uploads/2018/09/FP_20181009_china_human_rights.pdf RightDocs (2017) ‘The Contribution of Development to the Enjoyment of All Human Rights’, RightDocs, 23 June, available at www.right-docs.org/doc/a-hrc-res-35-21/ RightDocs (2018) ‘Promoting Mutually Beneficial Cooperation in the Field of Human Rights’, RightDocs, 26 February, available at www.right-docs.org/doc/a-hrc-res-37-23/ Roberts, S. (2020) The War on the Uyghurs: China's Internal Campaign against a Muslim Minority, Princeton: Princeton University Press. Roth, K. (2017) ‘Barack Obama’s Shaky Legacy on Human Rights’, Foreign Policy, 4 January, available at foreignpolicy.com/2017/01/04/barack-obamas-shaky-legacy-on-h uman-rights/ Sceats, S. and Breslin, S. (2012) China and the International Human Rights System. London: Chatham House, available at www.chathamhouse.org/sites/default/files/public /Research/International%20Law/r1012_sceatsbreslin.pdf Sikkink, K. (2019) Evidence for Hope: Making Human Rights Work in the 21st Century. Princeton: Princeton University Press. UN Secretary-General (2005) ‘Secretary-General’s Address to the Commission on Human Rights’, United Nations, 7 April, available at www.un.org/sg/en/content/sg/statement /2005-04-07/secretary-generals-address-commission-human-rights US Congressional Research Service (2019) ‘The United Nations Human Rights Council: Background and Policy Issues’, U.S. 26 February, available at fas.org/sgp/crs/row/ RL33608.pdf US Department of State (2019) ‘U.S. to Run for Election to the UN Human Rights Council’, U.S. 31 March, available at https://2009-2017.state.gov/r/pa/prs/ps/2009/03 /121049.htm Worden, A. (2018a) ‘China Deals Another Blow to the International Human Rights Framework at Its UN Universal Periodic Review’, China Change, 25 November, available at https://chinachange.org/2018/11/25/china-deals-another-blow-to-the -international-human-rights-framework-at-its-un-universal-periodic-review Worden, A. (2018b) ‘With Its Latest Human Rights Council Resolution, China Continues Its Assault on the UN Human Rights Framework’, China Change, 9 April, available at china change.org/2018/04/09/with-its-latest-human-rights-council-resolution-china-continues -its-assault-on-the-un-human-rights-framework Wright, R. (2019) ‘The Unbelievable Hypocrisy of Trump’s New “Unalienable Rights” Panel’, New Yorker, 9 July, available at newyorker.com/news/our-columnists/the-un believable-hypocrisy-of-trumps-new-unalienable-rights-panel Xu, V. et al. (2020) ‘Uyghurs for Sale’, Australian Strategic Policy Institute, available at https://www.aspi.org.au/report/uyghurs-sale Zenz, A. (2019) ‘‘Thoroughly Reforming Them towards a Healthy Heart Attitude’: China’s Political Re-education Campaign in Xinjiang’, Central Asian Survey, 38(1), pp. 102–128.

3

Pandemic Shifts? Covid-19 and the Geopolitics of Disease Nadine Voelkner

Introduction At this moment, the world continues to experience the fast-moving and deadly transmission of yet another coronavirus that is giving rise to the ongoing pandemic of Covid-19 (the disease). Covid-19 was named by the multilateral World Health Organization (WHO) on 11 February 2020, to refer to the atypical pneumonia caused by the coronavirus SARS-CoV-2. Covid-19 is an infectious disease which was first identified in Wuhan, China, on 31 December 2019. A month after this first reported case of Covid-19, on 30 January 2020, the WHO declared a Public Health Emergency of International Concern (PHEIC) over the Covid-19 outbreak. Shortly thereafter, the outbreak was proclaimed a pandemic by the same organisation on 11 March 2020. At the time of writing in March 2021,1 a year after this first reported case of Covid-19, the John Hopkins Covid-19 Dashboard reported a total of 118,816,666 confirmed cases and 2,630,755 deaths of Covid19 worldwide. The emergence of a new infectious disease such as Covid-19 is often linked to a higher fatality rate since it is not yet well understood, and early approaches to prevent or treat the disease are lacking or are ineffective. This creates profound anxiety among communities and governments in terms of both “the individual risk of infection and the collective risk of contagion” (Enemark 2007, p. 27). In the current context of collective anxiety, experts across the natural and social sciences are scrambling to find and collate accurate information, analyse and develop medical, social and other interventions to understand and mitigate the impact of rising Covid-19 infections on people and states around the world. For now, many important questions remain unanswered. One such important question concerns the ability of the existing cooperative arrangements and multilateral organisations established to govern global health more generally, and emerging infectious disease outbreaks in particular, to meet the challenges of the current pandemic. This is especially important to ask in the current context of increasing unilateralism and isolationism in world politics. During this coronavirus pandemic, the United States of America (US) under the Trump presidency dramatically retreated further from the arena of global (health) cooperation, while China is demonstrably rising in it. The European Union (EU), in turn, is beginning to step up and repositioning itself DOI: 10.4324/9781003167358-5

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in response to these changes. How is the WHO, the world’s leading health authority and the United Nations agency responsible for international public health, managing a global collaborative public health response in the current global political climate? This chapter discusses how the Covid-19 viral strain, in its largely unhindered path across geographies and state borders, is starkly illuminating the shifting power dynamics in current international affairs. The Covid-19 pandemic is also further deepening the fissures of a struggling international liberal order. The chapter begins by discussing the WHO’s role – its mandate, authority and funding – in the politics of global health, particularly in relation to the governance of emerging infectious diseases. As an intergovernmental organisation, the WHO derives its legitimacy and authority from its member base that consists of sovereign states including the US, China and EU member states. This has influenced its ability to act in the field of global health in so far as individual state interests often forestalled an international cooperative response. On the other hand, since the end of the Cold War, emerging infectious diseases have increasingly been identified as posing a serious global risk. This has given rise to a discourse of global (public) health security, promoted especially by some Western WHO members and the organisation itself. Defined as the activities required, both proactive and reactive, to minimize the danger and impact of acute public health events that endanger people’s health across geographical regions and international boundaries (WHO 2021) global (public) health security is a system of governmental thinking and understanding guiding policy-making in both preventing and managing infectious diseases. This discourse has motivated new institutional developments in the WHO and in global health governance more generally, having gradually led to the realigning of cooperative arrangements and actors in global health governance. Specifically, it elevated the WHO to be the main actor in coordinating global disease surveillance and containment in global health emergencies. Yet, as will be shown in a second step, in spite of the WHO’s relative autonomy, the governance of emerging infectious diseases over the past two decades has been plagued by the ceaseless discursive struggle between state sovereignty and global health security. The chapter traces this tension in the global response to three consecutive international infectious disease outbreaks preceding the Covid19 pandemic. Finally, drawing on this recent history of global health governance and considering the current geopolitical juncture, the chapter concludes with a discussion of the dynamics of international collaboration in response to the current, still unfolding, pandemic as well as the challenges faced by the multilateral WHO moving forward.

WHO’s Shifting Authority Founded in 1948, the WHO is headquartered in Geneva, Switzerland, with 6 semi-autonomous regional offices and 150 field offices worldwide. The WHO

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and its regional and field offices work in multi-level partnerships including political and technical levels with national, regional and global public and private organisations (WHO 2020a). Together, these actors with their different norms, aims and strategies, techniques and practices make up the complicated global health governance landscape dealing with global health issues (Harman 2012; McInnes & Lee 2012). The WHO strives to play a leading and coordinating role in this field of global health. Based on its broad mandate, the WHO advocates for universal healthcare, supports national public health systems and develops global public health standards. It monitors public health risks, supports medical research networks and, as is relevant also for the current pandemic, coordinates health emergencies. During an outbreak of an infectious disease like Covid-19, the WHO functions as a key nodal point for states and other organisations as well as the scientific research community in facilitating collaboration and coordination of appropriate public health actions. The intergovernmental WHO derives its legal status and legitimacy to operate and lead in global health from its current member base of 194 sovereign states (WHO 2020b). While it has a formal remit to act independently in certain, formally defined, spheres of global public health, its authority and ability to function also depend on the (financial and moral) support and (political) will of the diverse range of sovereign member states (Davies 2008; Rittberger et al. 2012; Hanrieder 2020). This implies that states’ commitment to the WHO is dependent on contending domestic and geopolitical (security) interests (Ingram 2005a, b, 2009) for example in relation to the importance attached to public health in a certain political context, the availability to bring domestic health governance in line with WHO rules or the general approach of a government to multilateral institutions. This is evidenced in the evolution of WHO funding. Its budget comprises, on the one hand, assessed contributions by member states based on a percentage of their GDP that is agreed every two years by the World Health Assembly (WHA). Assessed contributions, however, have been frozen since the 1980s. Today, this core funding makes up less than 20% of the WHO’s overall budget. On the other hand, the WHO budget is made up of voluntary contributions from member states as well as other UN and intergovernmental organisations, philanthropic foundations, the private sector and other sources. This donor-driven structure directs WHO activities to purposes and programmes specified by donor states and organisations (McInnes 2015). Thus, the relation between the WHO and its contributing member base is important to take into account when considering its response to a global health issue more generally and emerging infectious diseases such as Covid-19 especially. On the other hand, research into intergovernmental organisations (IGOs) has also revealed “the relative autonomy of IGOs vis-à-vis states” (Hanrieder 2020, p. 3). The WHO’s formal remit to act independently in global public health has been growing in relation to addressing global health security issues in the last two decades. While there is a long history of infectious diseases challenging states and polities, it is only after the Cold War that infectious disease containment has become an international, and even global, security issue. Since the end of the 20th century, and at the very least since the securitisation of HIV/AIDS by the UN

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Security Council in 2000 under the US Council presidency, where the disease’s impact on security and peace in Africa was discussed, emerging infectious diseases have come to be understood as a security risk (McInnes & Rushton 2013). The acceleration in the securitisation of diseases must be understood also in the context of the post-9/11 geopolitical environment in which a US-led emphasis on the threat posed by emerging infectious pathogens out of fear of biological terrorism led to the skewing of the global health agenda towards a smaller remit (Rushton 2011). Nationally, infectious diseases present a risk to the stability of the polity and economy of a nation-state. Globally, an emerging infectious disease outbreak risks affecting more than one state and may affect international political and economic stability, thus rendering it a global (public) health security issue. This has led to the WHO asserting itself as the main actor upon which all states can (theoretically) rely to contain an infectious disease outbreak and sustain global health security. This is especially the case since the establishment in 2000 of the Global Outbreak Alert Response Network (GOARN) and the enforcement in 2007 of the revised International Health Regulations of 2005 (IHRs). The GOARN is a global network of technical and public health institutions, laboratories, nongovernmental organisations (NGOs) and other organisations, which works with and under the WHO to identify and respond to emerging infectious diseases at an early stage. The revisions of the IHRs – a legally binding instrument of international law, the implementation of which is coordinated by the WHO – saw (1) the inclusion of the issue of emerging infectious diseases into the WHO’s mandate, (2) the loosening of the dependence on state-sanctioned information by including non-governmental information, and (3) the establishment of a formal internationally coordinated mechanism under the rubric of “public health emergency of international concern,” or PHEIC, to prevent the international spread of disease. The PHEIC entails that states have a legal duty to respond promptly to a public health emergency. Thus, in addressing emerging infectious diseases and global health security, the WHO has increasingly asserted itself and assumed relative autonomy vis-à-vis its member base. However, as scholars of securitisation (of health) have long argued (e.g. Rushton and Youde 2014), invoking security, i.e. presenting infectious diseases like Covid19 as global threats, invariably involves calling out a state of exception, at the level of states as well as at the level of supranational organisations such as the WHO. Scholars of global health have debated the way the securitisation of health, on the one hand, grants political priority to disease issues and empowers global health actors, and on the other hand, enables extraordinary and illiberal measures (Elbe 2006). Hanrieder and Kreuder-Sonnen have also demonstrated how exceptionalism emerged at the supranational level with the WHO’s response to the 2003 SARS crisis as will be discussed below. The scholars caution against the “emergency trap,” in the sense that any health issue risks being considered an emergency. Indeed the institutionalisation of emergency powers within the WHO, after its exceptional response to the SARS outbreak, contributed to securitising the swine flu outbreak as a global pandemic in 2009 (Hanrieder & Kreuder-Sonnen 2014).

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Here the health organisation was heavily criticised over its handling of the disease, which it declared for the first time in its history a PHEIC. After heavy criticisms of overreacting on conflicting interests between the organisation and the pharmaceutical industry during the swine flu outbreak (Kamradt-Scott 2017), in 2014 the WHO was criticised for reacting too late to the Ebola outbreak in West Africa. Its inaction has been understood by some scholars as indicative of the WHO and other global health actors’ focus on the health security of higher-income economies rather than of the Global South (Rushton 2011). Building global infrastructures such as the GOARN and the IHRs to strengthen global disease surveillance and containment has led to the increasing autonomy of the WHO from its member state base. Prompted also by the WHO’s success in containing the first major coronavirus incident in 2003, scholars at this time debated the transition to a post-Westphalian order in global health (Fidler 2004; Zacher & Keefe 2008). Yet, as Davies and others have argued, the control over the capacities of an intergovernmental organisation such as the WHO is ultimately held by its member states. Moreover, it is still states who implement the public health advice of the WHO (Kelle 2007; Davies 2008), which, as KamradtScott has argued, may in the end prevent the WHO from securing global public health (2011). Finally, scholars have also argued against the over-securitisation of infectious diseases as it shifts public health agendas away from many neglected diseases with high morbidity and mortality rates including diarrhoea disease (Rushton 2011; Harman 2012). Considering this backdrop of the WHO shifting between being “dependent and state-driven” and “discretionary and unaccountable” (Kreuder-Sonnen 2019), how is the WHO faring in the Covid-19 pandemic, especially when at the same time the commitment and involvement of three of its key members are changing substantially? The US, traditionally a large funder of and key player in the WHO, is retreating, while China is concurrently emerging as an increasingly important player in the WHO. The European Union (EU) is beginning to assume a coordinating role, potentially adding another layer in global health management. To begin to understand the contemporary global response to the Covid-19 pandemic and the role of the WHO in this context, it is useful to look at the changes that the WHO and the global health governance regime have undergone in the face of emerging infectious disease outbreaks since the first major coronavirus event, i.e. the SARS outbreak in 2003. Since SARS, the world has experienced a number of infectious disease outbreaks of international concern all of which influenced the WHO’s operational capacity and its relation to other public and private organisations which make up the global health governance system. The outbreaks worth considering here include, as already mentioned, the SARS outbreak in 2003 and the swine flu (H1N1) pandemic in 2009 but also the 2014 Ebola outbreak in West Africa.

Caught between State Sovereignty and Global Health Security The WHO’s capacity to lead on global health emergencies has changed since the first major coronavirus outbreak of this century, namely the SARS outbreak in

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2003. This is seen in its leading role in the development of a global public health vigilance regime (Weir & Mykhalovskiy 2010) that can be said to reflect also the increasing normalisation of global health security as an organisational principle. Nonetheless, the tensions arising between state sovereignty and global health security characterise much of the interactions between the WHO and its member states since SARS in 2003, and consequently also its ability to act on global health emergencies. The revision of the International Health Regulations (IHRs) that was agreed by 194 states in 2005 and enforced in 2007 played a crucial role in establishing an elaborate system of global health surveillance which was to oversee a vulnerable world increasingly seen to be at risk of emerging infectious diseases. In 2009, only two years after the enforcement of the IHRs, the swine flu pandemic led the WHO to call the first Public Health Emergency of International Concern (PHEIC). After its successes in containing SARS in 2003, the international health authority was criticised for its hasty and overresponse to the H1N1 outbreak in 2009, which turned out to be a “mild” infectious disease pandemic. In 2014, the WHO declared the Ebola outbreak in West Africa a PHEIC. On this occasion, the WHO was criticised once again but this time for its delayed and insufficient response. The WHO’s ability to respond to Covid-19 and its authority in the global politics of the current pandemic must be understood within the context of this institutional history. SARS (2003) and the Rise of Global Health Security Like in the current Covid-19 pandemic, the SARS outbreak in 2002/2003 quickly revealed the many difficulties, both practically and politically, of containing an unknown infectious disease spreading quickly around the world. Public health interventions were necessary to contain the outbreak, both at the domestic and at the international level. A total of 8,096 cases and 774 deaths were reported globally, affecting 31 countries or regions. China was the hardest hit state, where 7,083 people were infected and 648 killed by SARS (including Hong Kong and Macao). To China, the SARS outbreak presented a serious public health problem but also “the most severe social-political crisis to the Chinese leadership since the 1989 Tiananmen crackdown” (Hanrieder and Kreuder-Sonnen 2014). It was not only an economic problem, it triggered protests and riots in China, and it revealed the tensions among the Chinese political leadership. It also undermined the Chinese government’s efforts to build a more outward-looking identity (Huang 2003). China was criticised for delaying collaboration with the WHO, thus, preventing the international organisation from responding earlier (Enemark 2007, p. 29). To the WHO and the global scientific community, not only did China sound the alarm too late but, like with Covid-19, it took some time between the identification of the new disease SARS and the recognition that this was caused by a coronavirus. The earliest case of SARS is believed to have happened in Guangdong province, southern China, in mid-November 2002. Chinese health officials were aware of SARS as early as mid-December 2002. The Ministry of Health (MoH) and the

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provincial health bureau sent a team of experts to Zhongshan, Guangdong, to investigate the unknown disease and a “top secret” report was subsequently sent to health authorities in Guangzhou and Beijing. Due to issues with information flow within the Chinese government at the time and the nation-wide closures during Chinese New Year, government response was delayed (Huang 2003). According to Huang, the Guangdong provincial government at the time was more worried about the economic fallout than the health of people. In addition, as atypical pneumonia was not listed as an infectious disease under surveillance, the local government was not obliged to report on SARS. Like with Covid-19, the reporting on a disease without the blessing of the Ministry of Health also risked persecution for leaking state secrets (Huang 2003). It was not until around 7 February 2003 that the Chinese government alerted the WHO to an outbreak of atypical pneumonia. Guangdong health officials broke the news about the disease on 11 February. Yet, no further action by the Ministry of Health was taken. At the time, 305 people were reportedly infected with SARS and 5 had died in China (Huang 2003; Enemark 2007, p. 27). Given the secrecy and Chinese government inaction, the disease quickly spread from Guangdong to other parts of China, including the capital, Beijing. Health authorities in neighbouring Hong Kong Special Administrative Region (SAR), over which China had only just resumed sovereignty in 1997, remained uninformed and were left unprepared for the volatile disease outbreak (Ng 2009). Consequently, a medical professor from Guangzhou (the capital of Guangdong), who had been treating patients infected with SARS and had become infected himself, was not prevented from entering Hong Kong at the end of February. In Hong Kong, he visited a teaching hospital which led to an explosive outbreak of SARS there, affecting a large number of hospital staff and medical students. On 15 March 2003, the WHO issued its first global warning about the SARS virus. In China, although the government-controlled media was prohibited from reporting about the outbreak, news about SARS and its impact was spreading via mobile phones, email and the internet (Enemark 2007). Meanwhile in Hong Kong, SARS spread from the hospital to the community reaching its peak in early April 2003 when the disease affected a housing estate known as Amoy Gardens; a total of 329 residents in that estate came down with the disease and 33 died. It was not until 2 April 2003 that the WHO was allowed to enter Guangdong province to confirm that a new disease had emerged. In early May, while a continuing occurrence of the disease in 8 hospitals and more than 170 housing estates throughout Hong Kong was registered, the daily number of new cases declined from double to single digits. By May 2003, SARS had hit a number of global cities including Beijing, Guangzhou, Singapore and Hanoi in East Asia as well as Toronto, Canada. Within nine months after SARS first emerged in southern China, it had spread to 30 countries around the world. By 5 July 2003, however, no further human-to-human transmission was registered and the SARS outbreak was finally declared over (Enemark 2007). In hindsight, the diverging positions of China and the WHO in the SARS crisis can be read as the two actors operating on two irreconcilable modes of

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thinking in global health governance. Historically, China has tended to act on the premise of state sovereignty and non-interference in international relations. In this understanding, the decision-making authority in relation to an infectious disease outbreak rests with sovereign states alone. In the context of the SARS outbreak, as Kreuder-Sonnen has suggested, the dictates of state sovereignty “explicitly ruled out foreign or supranational interference” (2019, p. 535). The WHO under Dr Gro Harlem Brundtland, on the other hand, proceeded on the underlying tenets of global health security, whereby infectious disease outbreaks were understood to be an international security issue that necessitated supranational coordination and governance via the WHO. Essentially, global health security credited the WHO with being the main actor in global health governance and the leading organisation to decide on the appropriate action during global health emergencies, even if this involved prioritising global disease surveillance and containment over national economic and political interests. In essence, it meant interfering with state sovereignty. After SARS, the WHO revised the IHRs that are binding on member states in 2005. This formalised some of its authority operationalised during the SARS outbreak. In fact, though the Chinese government and the WHO struggled over authority during the SARS epidemic, since the early 2000s, China has aimed to extend Chinese influence abroad while securing power at home (Peckham 2020). This saw China embark on a path to increasing international engagement. In 2001, China acceded to the World Trade Organization and was elected to host the Summer Olympics in 2008. This trend is reflected also in the WHO and China’s interaction in ensuing global public health emergencies including the current pandemic. China’s annual contributions to the WHO have increased recently, rising since 2014 by 52% to around USD86 million today. Most of this results from increased assessed contributions, though China has also increased its voluntary contributions from USD8.7 million in 2014 to USD10.2 million in 2019. Notwithstanding, this is still significantly less than the overall US contribution which in the period 2018–2019 amounted to USD893 million. On the other hand, China has become more active in terms of global public health as can be seen in China’s “Health Silk Road” initiative or its support for the WHO’s aim of universal health coverage by 2030. Swine Flu (2009) and Vaccine Security? In early 2009, a novel influenza A virus emerged that was first discovered in Mexico. It would go on to give rise to the second pandemic involving a H1N1 influenza virus. The first H1N1 influenza virus pandemic triggered the devastating Spanish flu pandemic of 1918–1919, which is estimated to have infected 500 million people and caused between 17 and 50 million deaths. In 2009, a new strain of the H1N1 virus emerged from a recombination of bird, swine and human influenza viral strains in Mexico. The disease it causes came to be known as “swine flu.” Swine flu quickly spread around the world, infecting between 700 million and 1.4 billion people and causing 150,000 to 575,000 deaths. In

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April 2009, the WHO as well as the Obama administration declared the H1N1 outbreak a pandemic. A PHEIC was declared. The swine flu pandemic lasted 19 months, from January 2009 to August 2010. Like with SARS five years earlier, national and global public health authorities faced practical and ethical difficulties in mounting a concerted effort to contain the global viral spread. The WHO issued pandemic alerts and recommended stockpiling vaccines to prepare for a potentially catastrophic pandemic outbreak across the world. Developing countries were urged to divert funds from other public health priorities to fight the H1N1 pandemic in their states. In the end, however, the H1N1 influenza pandemic was milder than expected. The risk of serious illness from swine flu was not worse than seasonal flu (DeNoon 2010). Its handling of the H1N1 pandemic led to much criticism of WHO policy and decision-making. In hindsight, the science based on which planning was made and resources were mobilised proved faulty. But the global response to the H1N1 pandemic must also be understood as an outcome, as Abraham (2011) has argued, of the increasing securitisation of pandemics following the SARS outbreak in 2003. Experiences with avian influenza also contributed to this development. In early 2004, only a year after the SARS outbreak, a major outbreak of bird flu (from H5N1 virus) occurred amongst poultry in Vietnam and Thailand, subsequently spreading to other Asian countries. In September 2004, a first H5N1 human case was detected. By 2006, the bird flu strain had caused outbreaks in both poultry and wild birds in 53 countries as well as 256 human cases, including 151 deaths. Hundreds of millions of chickens, ducks, turkeys and geese either died or were culled to contain the virus spread (Kilpatrick et al. 2006). Avian influenza was not a new disease but one which for years was registered in the “dull but worthy” category of infectious diseases (Abraham 2011). Yet, after SARS and compounded by an emerging narrative that securitised infectious diseases, as well as in the context of the 2001 anthrax bioterrorist attacks and the War on Terror, the US and other leading countries including EU members as well as the WHO began to securitise avian and pandemic influenza and raised it as a risk to national and global health security (Abraham 2011). During the outbreak, influenza preparedness plans were raised, antivirals stockpiled and vaccines developed for a possible pandemic catastrophe. In 2007, the fault lines of power in the global health governance system became clearer. Indonesia ceased to share its H5N1 influenza virus samples with the WHO’s Global Influenza Surveillance Network (GISN) as its samples were passed to pharmaceutical companies who developed and patented vaccines that Indonesia and many developing countries could not afford (Kamradt-Scott & Lee 2011; Elbe & Voelkner 2014). After the swine flu pandemic of 2009, the WHO was heavily criticised by states and supranational organisations such as the EU as well as the global media for its opaque decision-making and procedures during the crisis. The WHO’s thendirector-general, Dr Margaret Chan, assisted by a secret Emergency Committee, issued pandemic alerts and recommendations which urged states around the world to amass large amounts of Tamiflu (vaccine) stockpiles in preparation for

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a potential influenza pandemic. Many governments acted on this urgent recommendation even if that meant diverting scarce health resources from other urgent health priorities, a problem that was particularly painful for developing countries (Abraham 2011). The WHO was also alleged to cede to corporate interests in promoting vaccine stockpiles even though the cost-benefit analysis of vaccines and related scientific evidence remained questionable (Elbe, Roemer-Mahler, and Long 2014). In their analysis, Elbe et al. (2014) trace the confidence in pharmaceutical stockpiling as an essential part of pandemic preparedness planning, as vaccines enable governments to quickly intervene in levels of viral circulation during a pandemic while allowing trade and travel to continue. This can be seen repeated in the current race for a vaccine in the Covid-19 pandemic. As Hanrieder and Kreuder-Sonnen (2014) find, the WHO response to the swine flu pandemic in fact displayed initiatives far greater in consequence than was expected of a state-driven international organisation. It must be understood, however, in the emerging infectious disease and global health security narrative promoted by the US and other leading actors dominating the global health landscape at the time, which legitimated WHO actions. Ebola 2014 and Western Health Security In March, 2014, the non-governmental organisation Médecins Sans Frontières (MSF) alerted the world to an evolving Ebola epidemic spreading in West Africa that was to become the most widespread Ebola virus disease outbreak thus far. At the time, the WHO reported Ebola cases confirmed by Guinean health officials. In the ensuing weeks, the disease spread from Guinea to Liberia and Sierra Leone. In June, MSF warned that the disease was out of control (MSF 2014), and the WHO declared the outbreak an emergency at the highest possible level, but it refrained from putting it into the PHEIC category. In July, social distancing measures were introduced in all affected states. Around August, after two US aid workers were infected with Ebola and evacuated back to the US, aid workers were also evacuated back to Europe. It was only after this period that the WHO finally declared a PHEIC on 8 August 2014, and on 28 August it published its plan to coordinate the international response. After more than six months, the UN Security Council passed Resolution 2177 declaring the Ebola crisis a threat to international peace and security. A UN Mission for Emergency Ebola Relief (UNMEER) was established. At the time, the US Centers for Disease Control and Prevention (CDC) estimated that cases might exceed 1.4 million in Liberia and Sierra Leone (CDC 2014). The first cases of Ebola were confirmed in the US and Europe around this time relating to medical workers treating repatriated aid workers, raising the concern for a spread in the US and in Europe. Some states, including the US, offered military support to contain the spread of the disease and sent up to 5,000 troops into the affected countries at their request. By end of 2014, however, infection rates were decreasing (McInnes 2015). The Ebola outbreak in West Africa caused significant morbidity and mortality as well as severe socio-economic disruptions in the West African region,

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especially in Guinea, Liberia and Sierra Leone. It also spread anxiety and fear across the world. The WHO reported in May 2016 that a total of 28,646 persons were infected and 11,323 died, which translates to a very high case-fatality rate of 40%. As with the H1N1 outbreak five years earlier, the WHO was widely and heavily criticised; though this time for its failure to respond timely and adequately to the 2014 Ebola crisis in West Africa. After all, the WHO and leading member states had actively promoted its leading role in managing “global health security” since 2001 (Kamradt-Scott 2016). Yet, this time, as Davies pointed out already in 2008, the discourse of global health security may be “the product of the WHO’s capitulation to western states’ concerns with preventing infectious disease outbreaks from reaching their borders” (Davies 2008). Moreover, the Ebola crisis highlighted China’s emerging role on the global health landscape in that China sought to address the PHEIC through bilateral and multilateral cooperation, initiating its largest humanitarian mission in Africa (Huang 2017). While its generosity in West Africa, though still smaller than the US and others, aimed to prevent the Ebola disease from spreading in China, its response to the Ebola crisis was also consistent with China’s diplomatic objective to gain soft power in Africa (Huang 2017). After all, China is the largest trading partner of Africa, accounting for USD15 billion worth of trade. Sierra Leone alone engages 47% of its total trading volume to exchange with Chinese companies (Huang 2017). After the Ebola crisis, many demanded that the WHO be reformed or replaced altogether. Apart from the criticisms of a lack of leadership and funding or the loose relationship between WHO headquarters and its regional offices, according to McInnes the Ebola crisis demonstrated the need for change in global health governing arrangements (McInnes 2015), that is, in the system of global health (security) governance. Both the 2003 SARS outbreak and the H1N1 pandemic were precursors of the perceived global risk posed by emerging infectious diseases which now made reforming the global health governance arrangements necessary. Specifically, while its performance during the West African Ebola outbreak was consistent with earlier outbreaks in so far as it provided technical expertise and recommendations, as should be expected from an organisation whose authority and funding rely to a large extent on member states, it was unable to cope with the outbreak (McInnes 2015). The WHO also did not have the organisational culture to take on such an active role, without running the risk of intransparency and mismanagement as had happened during the swine flu pandemic. In 2015, and in response to the Ebola crisis and preceding health crises, the WHO began undergoing reform towards enhancing its operational capacity to respond to major health crises. The reform process began with a revision of the WHO’s authority, shifting from expert and delegated authority (rooted in its member state base) to one based on the organisation’s own capacity, enabling it to act in a crisis, thereby changing the organisation’s authority as global governor. Specifically, the reform entailed programmatic, governance and managerial components to strengthen WHO capacity to act in public health emergencies (Asia and Organization 2016).

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WHO as a Proxy Battlefield of US-China Rivalry? The international politics unfolding in the wake of the Covid-19 pandemic has been challenging the global health governance system and its constituent cooperative arrangements, potentially pushing international health politics away from a focus on common global health (security) priorities and international cooperation towards scattered individual national, regional and geopolitical priorities and interests. Nothing short of a fundamental reform of the mandate, funding and authority of the world’s leading health authority may be necessary to sustain the multilateral organisation and to uphold a common global health imperative. While the WHO has been empowered to position itself as the world’s leading health authority, and to challenge state sovereignty in addressing global health insecurity since the SARS outbreak, during the ongoing Covid-19 pandemic the organisation’s authority to engage or challenge individual states has been diminishing. Firstly, given that the WHO has little power to bind or sanction its member states, many of them are ignoring its Covid-19 guidance on testing and social distancing, choosing to develop their own national strategies and approaches. Secondly, the WHO’s leading member, the US, as well as China have been directly challenging the WHO and/or existing global health governance arrangements “for reasons that have little to do with global health” (Fidler 2020). For China, control over information and firm management of public communication by the Communist Party are clearly higher priorities than the proactive implementation of WHO protocols. In the case of the US, the general disregard for multilateral organisations and the concerns of allies of the Trump administration combined with a visible desire to find a scapegoat for the Covid-19 drama unfolding in the country. Although there is also wide support, including from the EU, for upholding both the WHO and a common global health security outlook, this is challenged by the WHO becoming a “proxy battlefield” on which the current US-China-EU rivalry is playing out. Though the EU has tended to support strengthening a global liberal order, commentators are beginning to argue that it is now tending to emphasise developing European sovereignty and a more narrow regional focus over a common liberal order (Lehne 2020). This is weakening the WHO in a time when the organisation is most needed. When Covid-19 was just emerging within its borders in late 2019, the Chinese government reacted in a similar way as when SARS broke out in 2003, even though it caused a little less delay: it (1) postponed its acknowledgement of an emerging public threat until it was forced to do so following the circulation of messages by Wuhan public health officials about an emerging infectious disease on the platform WeChat, (2) played down the seriousness of the outbreak early on until it was forced to acknowledge its severity and transborder transmission when the first cases emerged in neighbouring countries, and (3) carried out a public health response that relied on quarantine, social control and the large-scale mobilisation of its public health system (Bouey 2020, p. 10) raising questions of human rights abuses. The WHO was notified of the potentially dangerous

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emergence of the disease on 31 December 2019, and it then began negotiating access to the country in order to investigate the emerging disease. The WHO’s seemingly tentative response early on in the Covid-19 pandemic, which must be understood also in relation to the organisation’s bruising experience with emerging infectious outbreaks over the last decade, has been heavily criticised by Trump and his administration as well as others. On 7 April 2020, Donald Trump tweeted: “The W.H.O. really blew it. For some reason, funded largely by the United States, yet very China centric.” Trump threatened to withhold funding to the WHO until its global response to Covid19 is investigated. In fact, the WHO’s medical diplomacy in negotiating entry into China to assess and confirm an evolving outbreak has been both praised and criticised: criticised for its failing to stand up to aggressive Chinese nationalism, applauding draconian quarantine measures, thereby exposing itself to criticism about adherence to liberal values that are seen (at least in the West) as undergirding the international liberal order; praised for its pragmatic diplomacy to keep China on board in tackling a fast-evolving outbreak. Trump’s subsequent letter to the WHO, sent to coincide with the 73rd World Health Assembly on 18–19 May 2020, was scathing in its condemnation of the organisation and its response to Covid-19. Trump demanded that the health organisation commit to “substantive improvements,” otherwise risking US funding and membership. On 7 July 2020, Trump formally notified the UN that he intended to withdraw the US from the WHO. With the election of Joe Biden and his inauguration in January 2021, however, the US made a major U-turn and rejoined the WHO once more. The US position under Trump in relation to the health organisation was not shared by other WHO members. During the WHA, the Covid-19 resolution was adopted by 130 members, the largest WHA majority on record, in which the leading role of the WHO in the global response to Covid-19 was affirmed. It called for any vaccine against Covid-19 to be made available as a global public good for health. It also called for sustainable funding of the WHO. Finally, yet another impartial, independent and comprehensive evaluation of the Covid-19 response was initiated. While this may be interpreted as a concession to Trump, it is simply in line with internal procedures adopted after the Ebola outbreak in 2014. On the initiative of the European Commission’s Ursula von der Leyen and other global organisations, a “worldwide pledging marathon” to secure billions for a medical response to the Covid-19 pandemic began in early May 2020. The WHO was put in charge of this fund, which has been spent to promote research on both a vaccine and improved treatment, as well as to enhance relevant medical facilities in developing countries. The EU is a major contributor to COVAX, doubling its contribution in February 2021 to USD1 billion. Currently, 191 countries are participating in the COVAX initiative of which 92 are low- and middle-income economies, many in Africa (European Commission 2021). While it may be the case that the WHO “has been drained of power and resources,” in reality the problem is that “(its) coordinating authority and capacity are weak. Its ability to direct an international response to a life-threatening epidemic is non-existent” as Richard Horton, the editor of the Lancet, an

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influential medical journal, argued in April 2020 (Buranyi 2020). Yet, this is very much dependent both on the financial and moral support of its member base as well as on the WHO’s role under the global health security narrative. The multilateral organisation has gained some autonomy over the last two decades, but the legitimacy of such arrangements has been questioned at regular intervals, and especially after epidemic experiences like the swine flu or Ebola. The authority of the WHO is now likely to be affected by the confrontation between three major powers in the face of the Covid-19 pandemic. While the US under Biden is reasserting its interdependence with the world at large, China is also rising to the demand for support of international structures, but it is doing so on its own terms, which also means challenging international governance arrangements at times. The EU, while demonstrably favouring a multilateral solution to Covid-19 in the form of its support of COVAX, is, nonetheless, defensively protecting European sovereignty and interests in the squabbles over vaccines. For the EU, supporting neighbours and others with democratic and economic reforms appears replaced by a focus on resilience and stability (Lehne 2020). WHO capabilities are also affected by the financial consequences of its donor-driven funding structure. This means that despite the support of a majority of members, and also the explicit efforts by the EU to promote multilateral solutions to the ongoing pandemic, the WHO risks emerging from this crisis weaker than it was before.

Conclusion The ability of the existing cooperative arrangements and multilateral organisations established to govern global health more generally, and emerging infectious disease outbreaks in particular, to withstand the political and economic challenges of the Covid-19 pandemic is yet to be seen. In part, this is because the current context of increasing unilateralism in world politics has seen a temporary retreat of the US under Trump from the global health (security) stage, which it has created itself. China, on the other hand, is confidently and demonstrably rising to the same global health arena but with its own demands for global health leadership. The EU, in turn, is successfully stepping up and repositioning itself in response to these changes. Yet, it is doing so by both supporting multilateral arrangements such as COVAX while also protecting European sovereignty and regional interests such as in the case of the competition for AstraZeneca vaccines. The WHO has shown an ability to manage a global collaborative public health response in spite of the current global political climate. It is noteworthy that this organisation has undergone significant institutional development in times of declining US hegemony and emerging competitors, first and foremost China. This was partly driven by global health emergencies, in particular waves of infectious diseases, but also by the Western promotion of the securitisation of health. The fact that this securitising drive has not met with major resistance, despite criticism on specific measures and their implementation, may suggest that the chances for normative agreement amongst key actors in health multilateralism are bigger than recent disputes lead us to believe. This does not mean that we see here an example

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of stable “multipolar multilateralism.” The Chinese emphasis on sovereignty, even in the midst of a fight against a global pandemic, shows that the extent and depth of multilateral ordering principles remain contested. The Trump presidency in turn has demonstrated that support for such principles is fragile, even in the West. It remains a bumpy road ahead for this multilateral organisation. This chapter has sought to clarify the WHO’s role in the politics of global health, particularly in relation to the governance of emerging infectious diseases. Its ability to act on global public health emergencies remains tied especially to its higher-income membership base such as the US, the EU and China with some member states exerting significant influence on the organisation’s actions. This notwithstanding, the WHO has also developed a leading position in global public health security which has seen it act with a level of independence from its member state base. This in turn has enabled realigning cooperative arrangements and actions under the common banner of global health security. In particular, the WHO has become the main actor in coordinating global disease surveillance and containment in global health emergencies. Yet, in spite of the WHO’s relative autonomy, the governance of emerging infectious diseases over the past two decades, as this chapter has shown, has been plagued by the ceaseless struggle between national interests and global health security. This normative tension is also demonstrated in the unfolding global response to Covid-19. In the end, in its largely unhindered path across geographies and state borders, the Covid-19 viral strain continues to starkly illuminate the shifting power dynamics in current international affairs.

Note 1 Data as of 12 March 2021 at 09.57 CET. Total confirmed cases and deaths in the US (29,286,142/530,821), in China (101,225/4,839). The Covid-19 dashboard in the Coronavirus Resource Centre is generated by the Center for Systems Science and Engineering (CSSE) at the John Hopkins University School of Medicine.

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Kamradt-Scott, A. (2017). What Went Wrong? The World Health Organization from Swine Flu to Ebola. Political Mistakes and Policy Failures in International Relations, 193–215. https://doi.org/10.1007/978-3-319-68173-3_9 Kamradt-Scott, A. and Lee, K. (2011) ‘The 2011 Pandemic Influenza Preparedness Framework: Global Health Secured or a Missed Opportunity?’, Political Studies, 59, pp. 831–847. Kelle, A. (2007) ‘Securitization of International Public Health: Implications for Global Health Governance and the Biological Weapons Prohibition Regime’, Global Governance, 13, pp. 217–236. Kilpatrick, A. M., Chmura, A. A., Gibbons, D. W., Fleischer, R. C., Marra, P. P. and Daszak, P. (2006) Predicting the Global Spread of H5N1 Avian Influenza. Proceedings of the National Academy of Sciences of the United States of America, 103, pp. 19368–19373. Kreuder-Sonnen, C. (2019) ‘China vs the WHO: A Behavioural Norm Conflict in the SARS Crisis’, International Affairs, 95, pp. 535–552. Lehne, S. (2020) ‘Securing the EU’s Place in the World’, Carnegie Europe, available at https://carnegieeurope.eu/2020/11/17/securing-eu-s-place-in-world-pub-83246 McInnes, C. (2015) ‘WHO’s Next? Changing Authority in Global Health Governance after Ebola’, International Affairs, 91, pp. 1299–1316. McInnes, C. and Lee, K. (2012) Global Health and International Relations. Oxford, UK: Polity Press. McInnes, C. and Rushton, S. (2013) ‘HIV/AIDS and Securitization Theory’, European Journal of International Relations, 19, pp. 115–138. MSF (2014) ‘Ebola in West Africa: Epidemic Requires Massive Deployment of Resources’, Médecins Sans Frontières (MSF) International, available at: https://www.msf.org/ebola -west-africa-epidemic-requires-massive-deployment-resources Ng, M. K. (2009) ‘Globalization of SARS and Health Governance in Hong Kong under “One Country, Two Systems”’, in S. Harris Ali and Roger Keil (Eds.), Networked Disease, Hoboken: John Wiley & Sons, Ltd. Peckham, R. (2020) ‘COVID-19 and the Anti-Lessons of History’, The Lancet, 395, pp. 850–852. Rittberger, V., Zangl, B. and Kruck, A. (2012) International Organization. London: Palgrave Macmillan UK. Rushton, S. (2011) ‘Global Health Security: Security for Whom? Security from What?’, Political Studies, 59, pp. 779–796. Rushton, S. and Youde, J. (2014) Routledge Handbook of Global Health Security. London: Routledge. Weir, L. and Mykhalovskiy, E. (2010) Global Public Health Vigilance: Creating a World on Alert. London: Routledge. WHO (2020a) ‘About Partnerships’, available at http://www.euro.who.int/en/about-us/ partners/about-partnerships WHO (2020b) ‘WHO Countries’, available at http://www.who.int/countries/en/ WHO (2021) ‘Health Security’, available at https://www.who.int/westernpacific/health -topics/health-security Zacher, M. and Keefe, T.J. (2008) The Politics of Global Health Governance: United by Contagion. New York: Palgrave Macmillan.

4

The Five Permanent Members of the UN Security Council and Multilateral Humanitarian Legal Regimes Lijiang Zhu

Introduction International humanitarian law (IHL) applies to situations of international and non-international armed conflicts for alleviating the sufferings of war victims by limiting the means and methods of warfare of the parties to armed conflicts and requiring the parties to offer protection to the victims, in particular the wounded, the sick, prisoners of war and civilians. It is composed of two parts: the rules limiting the means and methods of warfare of the parties to armed conflicts and the rules on the protection of the victims of armed conflicts. The former is known as “Hague Law,” and the latter is known as “Geneva Law.” More specifically, in “Hague Law,” there are two further subdivisions, namely the means of warfare and the methods of warfare. The means of warfare is generally related to the use of weapons by the parties of armed conflicts. Since the adoption of the St. Petersburg Declaration in 1868, the international community has developed a series of treaties on various weapons, including weapons of mass destruction (WMD) and conventional weapons. These treaties have formed the most developed branch of IHL, and many of them regulate not only the use of weapons by the parties to armed conflicts, but also many other matters beyond use, including development, production, stockpiling and destruction, which are related to international peace and security, disarmament and arms control. Among all IHL treaties on weapons, many of them are not universally accepted by all states in the world. Great powers only accept several IHL treaties concerning WMD and conventional weapons. There has been a clear division between great powers and other states in their attitudes to those IHL treaties in relation to certain weapons. Great powers in this paper are defined as those states with powerful military forces, political influence and gross domestic production, vast territory and a large population. It is not a term from the political or legal sciences, but a term from an objective and material perspective. In contrast to other countries, great powers are more likely to be involved in situations of armed conflicts, and therefore have more chances to engage with the foregoing international humanitarian treaties. In any event, the five permanent members of the United Nations Security Council (P5) are qualified as great powers in this paper, and the study of this paper aims to offer a comparative description and analysis of the attitudes of the P5 towards DOI: 10.4324/9781003167358-6

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the IHL treaties in relation to certain weapons. Moreover, international criminal justice is playing a more and more important role in enforcing IHL. In this regard, the Rome Statute of the International Criminal Court (Rome Statute) has become the most prominent treaty in relation to IHL by establishing international criminal responsibility for war crimes, and the attitudes of the P5 towards this treaty also deserve attention. This paper finds that among the P5, there is a clear division between the US, Russia and China on one side, and the UK and France on the other side, in relation to the attitude to matters of international criminal justice (Rome Statute), landmines (Ottawa Convention) and cluster munitions (Convention on Cluster Munitions). There is even a clear division between the US and Russia on one side, and China, the UK and France on the other side in relation to the attitude to arms trade (Arms Trade Treaty). The paper also finds that even among the US, Russia and China, they all claim exception to the above three multilateral humanitarian law treaties (Rome Statute, Ottawa Convention, Convention on Cluster Munitions) with different grounds. However, this paper further finds that, in the matter of nuclear weapons, the P5 claims exception to the new Treaty on the Prohibition of Nuclear Weapons, and attempt to create a great power exception to this multilateral legal regime. This paper draws the attention of the academists to the matter of humanitarian and military multilateralism when they are speaking of multilateralism at peril in this increasingly divided world in the conclusion.

A Divided P5 The Rome Statute of the International Criminal Court The Rome Statute provides the legal basis of the first permanent global international tribunal for the “the most serious crimes of concern to the international community as a whole” committed by individuals. It is one of the most important treaties adopted by the United Nations since its foundation in an effort to create a world based on the rule of law. The world thus establishes a multilateral regime of international criminal justice, and it is expected that all states join this regime. It was adopted on 17 July 1998 by a vote of 120 to 7, with 21 states abstaining (ICC 1998), and entered into force on 1 July 2002. As of 11 March 2021, it has 123 state parties.1 However, among the P5, the US, Russia and China have not yet become party to the Rome Statute, and the UK and France have become party to it. The UK became to all effects a third country vis-à-vis the EU on 1 January 2021,2 but she is “a powerful advocate of the ICC in all our diplomatic relations.”3 France is one of the EU member states robustly pursuing the universality of international criminal justice based on the Rome Statute. The EU has been a strong supporter of the ICC since its creation in all aspects, including politically, diplomatically, logistically and financially. In accordance with Council Decision 2011/168/CFSP, the EU adopted a policy of supporting the ICC in all its external actions. At a multilateral level, the EU’s support to the ICC is expressed, for example, within

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the framework of the United Nations (The Coalition 2015). By contrast, the US, Russia and China hold opposite views on the ICC. In fact, among the seven states voting against the Rome Statute were the US and China, while whether Russia also voted against the Statute was disputed as the way each delegation voted was officially unrecorded. They chose not to become a party to the Rome Statute; at the same time they are “fervent promoters of the establishment of the ICC.”4 According to the findings of the Pre-Trial Chamber I of the ICC, the US later became a signatory state,5 although the US withdrew its signature shortly after. Russia signed the Statute, but withdrew its signature in 2016.6 China did not sign the Statute but the Chinese government consistently understands and supports the establishment of an independent, impartial, effective and universal international criminal court.7 Moreover, at the Assembly of States Parties, states acting as observers – for example, the US8 and China9 – while recalling their concerns, also emphasised the importance of the ICC on the international plane.10 However, the reasons for the US, Russia and China choosing not to be a party to the ICC t are different. For the US, it wanted only the UN Security Council to initiate or approve referrals of atrocity crimes to the Court, and opposed independent powers for the prosecutor. The US wants to ensure that no US solider or citizen will be exposed to the jurisdiction of the Court (Scheffer 2008). The US has military bases in many countries and has carried out or will carry out military campaigns in many countries, and thus has an extremely high risk of being involved in military operations in which war crimes in particular might be alleged to have been committed. Such an explanation was well supported when the ICC Prosecution decided to apply for the authorisation to open an investigation of the alleged war crimes committed by the US Army in Afghanistan, and the attitude of the US to the ICC became hostile. On 10 September 2018, concerned that the ICC pre-trial chamber would authorise the investigation of the alleged war crimes committed by the US Army in Afghanistan, the US National Security Adviser John R. Bolton threatened that the US “will not cooperate with the ICC,” “will not join the ICC” and “will let the ICC die on its own” (Boylan 2018). He further threatened that the Trump administration would “use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court,” including banning its judges and prosecutors from entering the US, sanctioning their funds and prosecuting them in American courts (Boylan 2018). Perhaps due to this high political pressure from the US, the Pre-Trial Chamber II of the ICC rejected the application of the ICC Prosecution for the investigation of the alleged war crimes committed by the US Army in Afghanistan because it decided that an investigation into the situation in Afghanistan at this stage “would not serve the interests of justice” on 12 April 2019.11 This decision was warmly welcomed by the US administration. However, the Appeals Chamber overthrew the decision of the Pre-Trial Chamber II on 5 March 2020, finding that the Pre-Trial Chamber II erred in considering the “interests of justice factor.” In the Appeals Chamber’s view, the Pre-Trial Chamber II should have addressed only whether there was a reasonable factual basis for the Prosecutor to proceed

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with an investigation, in the sense of whether crimes have been committed, and whether the potential case(s) arising from such investigation would appear to fall within the Court’s jurisdiction. Noting that the Pre-Trial Chamber II’s decision contained all the necessary factual findings and had confirmed that there was a reasonable basis to consider that crimes within the ICC jurisdiction had been committed in Afghanistan, the Appeals Chamber decided to authorise the opening of an investigation itself, rather than send the matter back to the Pre-Trial Chamber for a new decision.12 The US president then issued Executive Order 13928 targeting investigators and prosecutors of the ICC on 11 June 2020.13 The order authorises asset freezes and visa denials against ICC lawyers and officials who investigate US personnel, including military and CIA personnel for alleged torture, rape and other war crimes in Afghanistan, and relatedly at CIA “black sites” in Lithuania, Poland and Romania. Despite the wide objection of 67 state parties to the Rome Statute and the EU, the president of the ICC’s Assembly of States Parties, UN human rights special rapporteurs and NGOs in the US and globally to the executive order, the US Department of State further announced that the US had designated the ICC Prosecutor, Fatou Bensouda, and the head of the Office of the Prosecutor’s Jurisdiction, Complementarity and Cooperation Division, Phakiso Mochochoko, for sanctions pursuant to Executive Order 13928 on 2 September 2020.14 The ICC then condemned it on the same date, saying that “these coercive acts, directed at an international judicial institution and its civil servants, are unprecedented and constitute serious attacks against the Court, the Rome Statute system of international criminal justice, and the rule of law more generally.”15 The US sanctions on the ICC significantly produce negative influences upon multilateralism in the field of international criminal justice. Russia signed the Rome Statute on 13 September 2000, earlier than the signature of the US. But Russia did not ratify the treaty, because there is inconsistency between Russia’s Constitution and the Rome Statute. However, the real reason might be concern about the potential prosecution and trial of Russian leaders, soldiers or citizens, as Russia might be also involved in overseas military operations in which war crimes might be alleged to have been committed or domestic oppression in which crimes against humanity might also be alleged to have been committed. Such an explanation was also supported when, on 27 January 2016, the Pre-Trial Chamber I granted the Prosecutor’s request to open an investigation proprio motu into the situation in Georgia, in relation to crimes against humanity and war crimes within the jurisdiction of the Court in the context of an international armed conflict between Russia and Georgia between 1 July and 10 October 2008,16 despite to the contention of Russia that it was Georgia which initiated the war in 2008. The relation between Russia and the ICC deteriorated in 2016 because on 14 November 2016 the ICC Prosecutor issued a preliminary report that described Crimea as an international armed conflict between Ukraine and Russia. This characterisation finally annoyed Russia. The Russia Foreign Ministry said that the ICC had failed to become a truly independent and respected body of international justice, and the Russian president signed a decree formally withdrawing from the Statute (Sputnik International 2016).

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China’s choice of not being a party to the ICC is based different reasons from those of US and Russia. While China is also concerned about the Prosecutor’s right because “the Prosecutor’s right to conduct investigations or to prosecute proprio motu, without sufficient checks and balances against frivolous prosecution, was tantamount to the right to judge and rule on State conduct”17 and “the provision that the Pre-Trial Chamber must consent to the investigation by the Prosecutor was not a sufficient restraining mechanism,”18 the Chinese explanations are even concerned with the jurisdiction of the ICC. China stated that the Statute granted universal jurisdiction to the Court over three core crimes, although Article 12 had provided that, in exercising its jurisdiction, the Court should obtain the consent of the State where the crime was committed or of which the accused was a national. However, that did not mean that consent by a State was a sine qua non of the Court’s jurisdiction. That imposed an obligation upon non-parties and constituted interference in the judicial independence or sovereignty of States, which he could not accept.19 China is even concerned with the definition of war crimes and crimes against humanity enshrined in the Statute because “the definition of war crimes and crimes against humanity had already exceeded commonly understood and accepted customary law,”20 and “the inclusion of non-international armed conflicts in the jurisdiction of the Court and the reference to crimes against humanity” is not acceptable for China.21 In particular, it seems that, as regards the most important issues to China, jurisdiction and the applicability of the Statute’s crimes to internal armed conflicts, there is no likelihood of a solution anytime soon (Jia 2006). It is evident that the reasons why China is opposed to the ICC are mainly concerns of potential war crimes in the cross-Strait conflict and potential crimes against humanity in domestic governance. The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction In the matter of landmines, the international community has developed two parallel multilateral humanitarian regimes, and they are competing with each other (Zhu 2010, p. 653). In this regard, the great powers opt out of the multilateral humanitarian regime on the total ban of anti-personnel landmines – the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (hereinafter the “Ottawa Convention”),22 despite the fact that they opt to be a part of the multilateral humanitarian regime on a limited approach to landmines – the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (hereinafter “Amended Protocol II to the CCW”).23 As of 12 October 2018, the Ottawa Convention has 164 state parties.24 Among the P5 of the UN Security Council, the US, China and Russia are not parties to the Ottawa Convention, they were reported to retain or use anti-personnel landmines,

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while the UK and France have been parties to it. “The Mines Treaty [Ottawa Convention], only supported by countries that do not significantly use APLs [antipersonnel landmines], fails to impede the major users of APLs” (Taverna 1999). It is noted that, at present, all 27 EU member states, including France, and the UK have joined the Ottawa Convention, and the EU has been a strong supporter of this treaty in achieving universality and full implementation. The EU remains a top donor for humanitarian mine action to address the threat of mines, boobytraps and explosive remnants of war in conflict-affected countries. The 2017 EU Council Decision steps up support for this treaty. Ambassador Sørensen, Head of the EU Delegation to the UN in Geneva, underlined that “The Ottawa Convention is multilateralism at its best. It combines a strong global norm with impressive results on the ground. Tens of thousands of human lives and limbs have been saved since the entry into force of the Convention” (EEAS 2017). By contrast, the US Department of State said that “the United States will not join the Ottawa Convention because its terms would have required us to give up a needed military capability” (US Department of State 2004) and that “landmines still have a valid and essential role in protecting United States forces in military operations … No other weapon currently exists that provides all the capabilities provided by landmines” (US Department of State 2004). It is reported that the US and South Korea have laid and maintained millions of anti-personnel landmines in the Korean peninsula for an alleged potential attack from North Korea. According to Russia, we support in principle the idea of joining the [Ottawa Convention]. But it can be done only when we find ourselves capable to fulfill our obligations … Progress towards a mine-free world should be realistic, phased and based on maintaining the necessary level of stability.25 Russia was found to be one of the three states which still used anti-personnel landmines in the armed conflicts of 2005.26 Russia was urged to stop its troops in Ukraine from laying the landmines by a top official of the global campaign against landmines in the recent Russia-Ukraine War.27 According to China, Landmines remain an indispensable defensive weapon for many countries. China cannot but reserve its legitimate right to use anti-personnel landmines on its own territories to establish defensive capabilities before alternative means can be found. China understands and respects the sovereign choice of those countries which have signed the Ottawa Convention on the Prohibition of Landmines. However, it is neither realistic nor possible to compel the nonsignatories of the Ottawa Convention to accept it here in the [Conference on Disarmament]. (Groves & Bromund 2010) Although China has apparently not laid new minefields in many years,28 the Chinese government stated that “China is extremely cautious and prudent in using

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landmines within its borders”;29 this implies that China places landmines within its borders. Although China is not a party to the Convention, it has for many years maintained close exchanges and cooperation with States parties, participated in meetings of the States parties and the review conferences of the Convention as an observer state. Since 2005, China has voted in favour of the UNGA resolutions on the implementation of the Ottawa Mine Ban Convention for consecutive years, which demonstrate our affirmation and endorsement of the important role of the Convention.30 Convention on Cluster Munitions (CCM) Similar to the anti-personnel landmines, the international community began to consider the use of cluster munitions to be unacceptable in armed conflicts because they have wide area effects and are unable to distinguish between civilians and combatants, and because the use of cluster munitions leaves behind large numbers of dangerous unexploded ordnance with a risking of killing and injuring civilians, obstructing economic and social development and having other severe consequences that persist for years and decades after use. On 30 May 2008 the Convention on Cluster Munitions (CCM) totally banning cluster munitions was adopted in Dublin, Ireland, and signed on 3–4 December 2008 in Oslo, Norway. It entered into force on 1 August 2010. As of 11 March 2021, it has 108 state parties.31 Among the P5 of UN Security Council, the US, Russia and China have not acceded to this treaty, despite the fact that these three countries have the largest number of cluster munitions in the world, while the UK and France are parties to the CCM. While not all 27 EU member states are parties to this treaty, the EU has been strongly supporting this treaty. The EU calls upon all actors to refrain from the use of cluster munitions and to fully adhere to the principles of international humanitarian law. It contributes towards the goals of the Convention through its commitment to mine action, which also addresses explosive remnants of war (ERW) including cluster munitions (EEAS 2019). By contrast, the US does not only produce and export cluster munitions, but has also actually used cluster munitions in many armed conflicts, including in Cambodia, Laos, Vietnam, Serbia, Afghanistan and Iraq. The US does not support the complete ban of cluster munitions, but considers that cluster munitions are legitimate weapons with clear military utility in combat by providing distinct advantages against a range of targets, where their use reduces risks to US forces and can save US lives (US Department of Defense 2008). These weapons can also reduce unintended harm to civilians during combat, by producing less collateral damage to civilians and civilian infrastructure than unitary weapons. Russia is also a main producer and exporter of cluster munitions. It has also actually used cluster munitions in many conflicts, including in Chechnya (Peachey & Wiebe 2000), Georgia (Cluster Munition Coalition 2009), Ukraine (Cluster Munition Coalition 2014, 2022) and Syria (Cluster Munition Coalition 2015, Human Rights Watch 2019). Russia stated

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that cluster munitions were “a legitimate type of weapon that is not banned by international humanitarian law and plays a significant role in the defense interests of Russia … We are against unjustified restrictions and bans on cluster munitions.”32 China has not signed or acceded to the Cluster Munitions Convention. However, China participated in the meetings of state parties as an observer from 2010 to 2017. According to China, China appreciates the international humanitarian spirit as embodied in the Cluster Munitions Convention. However, due to the needs of national defence, China is unable to accede to this treaty at present, but this does not affect the cooperation between China and the state parties so as to jointly settle the problems of cluster munitions. China also stated that China has never used cluster munitions outside the territory. China is also very concerned that the cluster munitions may fall into the possession of non-state actors.33 Arms Trade Treaty (ATT) The 2013 Arms Trade Treaty (hereinafter ATT) is the first global international treaty that regulates the international trade in conventional arms and seeks to prevent and eradicate the illicit trade and diversion of conventional arms by establishing international standards governing arms transfers.34 In particular, Article 6 (3) of the ATT provides that a state party shall not authorise any transfer of conventional arms, if it has knowledge at the time of authorisation that the arms or items would be used in the commission of genocide, crimes against humanity, “grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.” Furthermore, Article 7 (1) of the ATT provides that, if the export is not prohibited under Article 6, each exporting state party, prior to authorisation of the export of conventional arms, under its jurisdiction and pursuant to its national control system, shall, in an objective and non-discriminatory manner, taking into account relevant factors, including information provided by the importing state, “assess the potential that the conventional arms or items: … (b) could be used to (i) commit or facilitate a serious violation of international humanitarian law.” Therefore, this treaty is an important treaty in relation to international humanitarian law. Although the P5 is among the largest conventional weapons exporters in the world, they are divided in whether they should join the ATT. According to a recent statistic, the US and Russia are together responsible for over 50% of the world’s export of arms. The US is the world’s top exporter of arms, and Russia is the second largest exporter of arms in the world. The third and the fourth largest exporters are China and France, and the UK is the sixth largest exporter, following Germany, the fifth largest exporter (Worldatlas 2019). France and the UK became state parties to the ATT in 2014. In the UK, on 10 July 2017, the High Court of Justice delivered its decision regarding the choice of the Secretary of State for International Trade not to halt the transfers of arms between the UK and Saudi Arabia (SA). The Campaign Against Arms Trade (CAAT), the claimant, requested a judicial review of that choice, in light

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of the violations of IHL committed by Saudi Arabia in the conflict in Yemen which likely occurred through UK-manufactured arms and weapons. Eventually, the judges accepted the government’s arguments and dismissed the request for judicial review.35 At present, all EU member states have joined the ATT and are pursuing its objectives, since its inception. The EU framework governing arms exports revolves around the EU Common Position on arms exports, adopted in 2008. The EU continues to call on all states to join the ATT without delay, and to implement its provisions.36 By contrast, the US and Russia have not yet become state parties to it. Moreover, they show different attitudes towards it. The US signed on to the ATT in 2013 when the US was under the Obama administration. However, on 26 April 2019, US President Trump held up an executive order he signed at a National Rifle Association event, announcing that he would never ratify the ATT and would ask the Senate to reject it. He said, “We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy” (White House 2019). The White House stated that there is a track record of the ATT being used by groups to try to overturn sovereign national decisions on arms exports, the US export controls have long been considered the gold standard for engaging in responsible arms trading and they would continue to control the exports of conventional weapons under the US’s own laws. President Trump also stated that this agreement would not become a platform to threaten Americans’ Second Amendment rights. The statement also points out that the ATT fails to actually address the problem of irresponsible arms transfers. The statement also said that 63 countries are completely out of the agreement, including major arms exporters like Russia and China (White House 2019). By contrast, Russia’s attitude to the ATT is different from the US. While Russia did not object outright to the ATT, Russia does not have any clear intent to join it. Russia has listed several reasons for its abstention including the non-binding nature of the treaty, the treaty’s failure to address transfers to private parties, the treaty’s low standards and its potentially discriminatory effect against Russia (Sorenson 2015). Unlike the US and Russia, China decided to accede to the ATT on 20 June 2020. A Chinese representative to the UN submitted the instrument of accession to the UN on 6 July 2020, and the treaty entered into force for China on 4 October 2020.37 In fact, China had already announced her intention to become a state party of the ATT earlier. The Chinese Foreign Minister Wang Yi stated during the general debate of the UN General Assembly that China had initiated the domestic legal procedure to accede to the ATT. Chinese Foreign Ministry Spokesperson Geng Shuang also echoed on 28 September 2019 that “This is a significant step in China’s active participation in global arms trade governance to safeguard international and regional peace and stability. It demonstrates China’s resolution to support multilateralism and forge a community with a shared future for mankind” (MOFA 2019). China needs to submit its initial report to the ATT Secretariat on 3 October 2021, and she is engaging with partners to discuss the implementation of the treaty, including the International Committee of the Red Cross (ICRC).38

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The accession to the ATT was influenced by US President Trump’s decision to withdraw from the signature of the ATT and the decision that the US would never join the ATT on 26 April 2019.39 China then acceded to this treaty in order to show China’s commitment to multilateralism in the field of arms control. This became another outstanding example of the different attitudes towards multilateralism between China and the US.

A United P5 Treaty on the Prohibition of Nuclear Weapons (TPNW) After the invention of nuclear weapons at the end of the Second World War, the horrible destructive effects of nuclear weapons were witnessed in the bombing of Hiroshima and Nagasaki in August 1945 by the US. Afterwards, despite the possibility that the use of nuclear weapons may necessarily constitute a violation of international humanitarian law, in particular the principle of distinction, the principle of proportionality and the principle of precautions,40 in international law, there was not any treaty specifically prohibiting nuclear weapons at the universal level until the adoption of the Treaty on the Prohibition of Nuclear Weapons (TPNW) by the United Nations General Assembly on 7 July 2017.41 This is the “first globally applicable multilateral agreement to comprehensively prohibit nuclear weapons” (ICRC 2018). The treaty entered into force on 22 January 2021. As of 11 March 2021, the treaty has 54 state parties.42 Among the P5 of the UN Security Council, they are all opposed to this treaty. On 7 July 2017, a joint press statement was made by the permanent representatives to the UN of the US, the UK and France following the adoption of the TPNW. That joint press statement showed that they do not intend to be a party to this treaty and explained the reasons. It said, We do not intend to sign, ratify or ever become party to it. Therefore, there will be no change in the legal obligations on our countries with respect to nuclear weapons. For example, we would not accept any claim that this treaty reflects or in any way contributes to the development of customary international law. Importantly, other states possessing nuclear weapons and almost all other states relying on nuclear deterrence have also not taken part in the negotiations.43 It also said that the treaty “disregards the realities of the international security environment,” and that accession to the treaty “is incompatible with the policy of nuclear deterrence.”44 In the US, both the Obama administration and the Trump administration share a common position on the TPNW. President Obama led the nuclear-armed states’ opposition to the TPNW, and when final negotiations were launched on 27 March 2017, Trump’s UN Ambassador Nikki Haley explained the US-led boycott this way: “[W]e have to be realistic. Is there anyone that

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believes that North Korea would agree to a ban on nuclear weapons?” (Laforge 2018). Russia also chose to be an exception to the TPNW. On 18 January 2018, at the UN Security Council meeting on the non-proliferation of weapons of mass destruction, Russian Foreign Minister Lavrov stated that Russia does not intend to join the Treaty. We believe that the total eradication of nuclear weapons is possible only in a context of comprehensive, full disarmament, with equitable, equal and indivisible security for all, including those possessing nuclear weapons, as is provided for in the Treaty on the NonProliferation of Nuclear Weapons. The provisions of the Treaty on the Prohibition of Nuclear Weapons, as presented for signature, are far from being based on those principles. It ignores the importance of taking into account every factor affecting our strategic stability today. It has given rise to profound disagreement among members of the international community and could have a destabilizing effect on the non-proliferation regime. I would like to stress that we embrace the goal of building a nuclear-weapon-free world. However, we cannot achieve that with the unilateral measures on which the Treaty on the Prohibition of Nuclear Weapons is based.45 By contrast, although China did not participate in the negotiation of the treaty, she has not yet clearly stated that she does not intend to be a party to this treaty. The Chinese spokesperson of the Foreign Ministry responded to the question of whether China would participate in the negotiations on 20 March 2017. She said, after careful considerations, China has decided not to participate in the new round of negotiations. This is a choice made to maintain the current international arms control and disarmament regime and move ahead nuclear disarmament in a gradual and incremental way. (MOFA 2017) This led some observers to say that while China boycotted the negotiations, it was “the most responsive of the five NWS towards the NWPT. China was the only one of the five that did not vote against the NWPT negotiation in the UN General Assembly last year” (Zhao & Wang 2017). On 22 October 2018, a joint statement was made on the TPNW by the P5 for the first time in the UNGA 73 First Committee Thematic Debate (Nuclear Weapons) in New York. In that joint statement, the P5 stated that The TPNW fails to address the key issues that must be overcome to achieve lasting global nuclear disarmament. It contradicts, and risks undermining, the NPT. It ignores the international security context and regional challenges, and does nothing to increase trust and transparency between States. It will not result in the elimination of a single weapon. It fails to meet the highest standards of non-proliferation. It is creating divisions across the international non-proliferation and disarmament machinery, which could make further progress on disarmament even more difficult. (GOV.UK 2018)46

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The P5 further expressed that we will not support, sign or ratify this Treaty. The TPNW will not be binding on our countries, and we do not accept any claim that it contributes to the development of customary international law; nor does it set any new standards or norms.47 This joint statement is not surprising in consideration of their common status under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). P5 is the “nuclear weapons States” (NWS) in the framework of the NPT. Since 2009, they have convened periodically in one of the member states to discuss the nuclear non-proliferation matters that concern them (“P5 Process” or “P5 Regime”). When they formed a common position on a particular nuclear issue, they often adopted a joint statement. For example, on 1 November 2018, they also made a general statement on Resolution L. 58 on the Treaty Banning the Production of Fissile Material for Nuclear Weapons or other Nuclear Explosive Devices within the First Committee of the 73rd UNGA in New York.48 International Legal Implications The foregoing examination shows the P5 of the UN Security Council is not willing to be bound by the multilateral humanitarian legal regimes to some extent. The US, Russia and China opt out of the multilateral humanitarian regimes of international criminal justice, anti-personnel landmines and cluster munitions by not acceding to or even opposing them. The P5 of the UN Security Council all opted out of the multilateral humanitarian legal regime on the prohibition of nuclear weapons. It is noted that, although they represent an absolute minority of the states in the world, they are nevertheless the key actors in these matters, so they are the substantive players in these matters. A multilateral regime without the participation of these great powers is not a genuine multilateral regime, and will make the multilateral regime less effective and erode peoples’ confidence in realising the rule of law at the international level. It is further noted that, while they all choose to be not bound by these multilateral humanitarian regimes, each of them has different reasons for the exception, and they have not yet formed an alliance to jointly counter the multilateral regimes except in the matter of nuclear weapons. At present, a system of Great Powers Exception like that in Europe in the 19th century, i.e. the great powers united to be the exception to a universal system, has not been formed. Nevertheless, it is suggested that in terms of international law, the P5 exception to multilateral humanitarian legal regimes should not be ignored because it may produce international legal implications. The international legal implications which may arise from the P5 exception have been vividly set out by the Chinese Foreign Ministry in a note on the joint statement of the P5 of the UNSC on the TPNW.49 According to the note, the reason why the P5 made a joint statement on the TPNW on 29 October 2018 was to use the rules of the formation of customary international law and its legal effect to prevent the TPRW from changing the current relevant international legal rules

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on nuclear weapons and the legitimate rights of the legally possessed nuclear powers. The first rule of formation of customary international law is the doctrine of specially affected states.50 The UN International Law Commission stated in Conclusion 8 of the 2018 Draft Conclusions on Identification of Customary International Law that “the relevant practice must be general, meaning that it must be sufficiently widespread and representative, as well as consistent.”51 The Commentaries on this Conclusion explained that in assessing generality, an indispensable factor to be taken into account is the extent to which those States that are particularly involved in the relevant activity or are most likely to be concerned with the alleged rule (“specially affected States”) have participated in the practice.52 As the only States legally possessing nuclear weapons in international law, the P5 of UNSC are clearly the “specifically affected States” in the matter of the legality of nuclear weapons. In the joint statement, the P5 specifically pointed out that they do not accept any proposition that the TPNW is conducive to the formation of customary international law. The significance of the joint statement is that, even if the TPNW enters into force, it cannot be said that the TPNW has been widely accepted so long as the P5 are opposed to it as the “specially affected states,” and thus may block the formation of relevant customary international law. The second rule of the formation of relevant customary international law is that, even if the TPNW has formed into customary international law, it is not legally binding on the P5 because the P5 are the “persistent objectors.”53 Conclusion 15 of the 2018 Draft Conclusions on Identification of Customary International Law of the UN International Law Commission stated that “where a State has objected to a rule of customary international law while that rule was in the process of formation, the rule is not opposable to the State concerned for so long as it maintains its objection.”54 This joint statement of the P5 well satisfies the conditions of “persistent objector” rules. The P5 has persistently opposed the treaty since the negotiations, and they insist on the objection today. On 31 January 2019, the P5 believed that the TPNW deviates from and undermines the NPT, and reiterated their opposition at the public event of the Second Beijing P5 Conference (MND 2019). Therefore, even if the P5 as “specially affected states” are unable to block the formation of the relevant provisions of the TPNW, they are still not bound by them as “persistent objectors.”

Conclusion If multilateralism shall be defined as “the practice and principle of three or more States committing to collective action, according to established rules, to address common problems and opportunities” (Newman 2007), then humanitarian multilateralism may be defined as the practice and principle of three or more states committing to collection action, according to established rules, to address common

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humanitarian problems and opportunities. Such humanitarian problems include weapons and international criminal justice. Humanitarian multilateralism brings humanity and justice in armed conflicts, a man-made disaster that humankind is unable to totally abolish today. In order to realise humanitarian multilateralism, it is necessary to establish a network of international legal regimes and international organisations (Newman 2007). Since the middle of the 19th century, states have been establishing and pushing forward humanitarian multilateralism, in particular those small and middle-sized states. By contrast, great powers occasionally opted out of the established humanitarian multilateralism. This is a fact that the international community cannot ignore. While recently the world has witnessed the withdrawal of some important multilateral regimes on climate change, human rights and international trade, thus putting multilateralism at peril, the world needs to also pay attention to the humanitarian multilateralism at peril, as demonstrated in this paper. The P5, as the strongest military powers in today’s world holding veto powers in the UN Security Council, can be divided into two categories in their attitudes towards important multilateral humanitarian treaties in relation to particular weapons and international criminal justice. The first category is a divided P5 in addressing the Rome Statute, Ottawa Convention, Convention on Cluster Munitions and Arms Trade Treaty. Usually the US, Russia and China are on one side, and the UK and France are on the other side. But even within the group of the US, Russia and China, they have different reasons for not being party to the treaties. The second category is a united P5 in addressing the Treaty on the Prohibition of Nuclear Weapons. They all opt out of this new treaty. However, we shall not exaggerate these effect of the opt-out of the P5 to the multilateral humanitarian treaties, in particular the US, Russia and China. In fact, the P5 are all parties to the 1925 Geneva Gas Protocol, 1949 Geneva Conventions, 1972 Biological Weapons Convention, 1980 Convention on Certain Conventional Weapons and all five protocols and 1993 Chemical Weapons Convention. Of the P5, only the US is not a party to the 1977 Additional Protocols to the Geneva Conventions and only France is not a party to the 1976 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques. Only when a humanitarian treaty affects the fundamental concerns of the P5 will they be reluctant to be a party to it. How to incorporate great powers into the multilateral humanitarian legal regimes, however, is another great challenge.

Notes 1 See ‘The States Parties to the Rome Statute’, https://asp.icc-cpi.int/en_menus/asp/ states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute .aspx 2 See ‘The EU’s Relations with the UK’, https://eeas.europa.eu/delegations/united -kingdom/69561/united-kingdom-and-eu_en 3 See ‘International Criminal Court Strategy Paper’, https://www.gov.uk/government/ publications/international-criminal-court-strategy-paper 4 ICC, Pre-Trial Chamber I’s Decision on the ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’, No. ICC-RoC46(3)-01/18, 6 September 2018, para. 42.

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5 President William J. Clinton’s Statement on the Rome Treaty on the International Criminal Court, 31 December 2000: “The United States is today signing the 1998 Rome Treaty on the International Criminal Court. In taking this action, we join more than 130 other countries that have signed by the December 31, 2000, deadline established in the treaty. We do so to reaffirm our strong support for international accountability and for bringing to justice perpetrators of genocide, war crimes, and crimes against humanity. We do so as well because we wish to remain engaged in making the ICC an instrument of impartial and effective justice in the years to come” (emphasis added), see http://www.presidency.ucsb.edu/ws/?pid=64170 6 Statement by the Russian Foreign Ministry, 16 November 2016: “On November 16, the President of the Russian Federation signed the Decree ‘On the intention not to become a party to the Rome Statute of the International Criminal Court’. The notification will be delivered to the Depository shortly. Russia has been consistently advocating prosecuting those responsible for the most serious international crimes. Our country was at the origins of the Nuremberg and Tokyo tribunals, participated in the development of the basic documents on the fight against genocide, crimes against humanity and war crimes. These were the reasons why Russia voted for the adoption of the Rome Statute and signed it on September 13, 2000.” See further, United Nations Treaty Collection, Status of Treaties, the Rome Statute of the International Criminal Court, “In a communication received on 30 November 2016, the Government of the Russian Federation informed the Secretary-General of the following: I have the honour to inform you about the intention of the Russian Federation not to become a party to the Rome Statute of the International Criminal Court, which was adopted in Rome on 17 July 1998 and signed on behalf of the Russian Federation on 13 September 2000.” 7 Ministry of Foreign Affairs of the People’s Republic of China, China and the International Criminal Court, 28 October 2003: “The Chinese Government consistently understands and supports the establishment of an independent, impartial, effective and universal international criminal Court. If the operation of the court can really make the individuals who perpetrate the gravest crimes receive due punishment, this will not only help people to establish confidence in the international community, but also will be conducive to international peace and security at long last.” 8 Statement on Behalf of the United States of America, 16th Session of the Assembly of States Parties, 8 December 2017: “The United States strongly supports justice and accountability for war crimes, crimes against humanity, and genocide, including through support of domestic accountability efforts. We appreciate the efforts of the ICC and the Parties to the Rome Statute to pursue these objectives. At the same time, recent developments in connection with a request by the Office of the Prosecutor to open an investigation into the situation in Afghanistan raise serious and fundamental concerns that we wish to register today.” 9 Statement of the Chinese Observer Delegation at the General Debate in the 16th Session of the States Parties to the Rome Statue of the ICC, Mr. Ma Xinmin, Deputy DirectorGeneral of the Department of Treaty and Law of the Ministry of Foreign Affairs of China (New York, 7 December 2017): “China has always supported law-based efforts to fight against and punish grave crimes that threaten international peace and security and we expect that the International Criminal Court plays a constructive role in this regard.” 10 Ibid. 11 ICC, Pre-Trial Chamber II, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, ICC-02/17-33, 12 April 2019, para. 96. 12 ICC, Appeals Chamber, Judgment on the Appeal against the Decision on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, No. ICC-02/17 OA4, 5 March 2020, para. 46.

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13 https://www.federalregister.gov/documents/2020/06/15/2020-12953/blocking -property-of-certain-persons-associated-with-the-international-criminal-court 14 https://edition.cnn.com/2020/09/02/politics/us-icc-sanctions/index.html 15 International Criminal Court condemns US economic sanctions, ICC-CPI20200902-PR1535, https://www.icc-cpi.int/Pages/item.aspx?name=pr1535 16 ICC, Pre-Trial Chamber I, Decision on the Prosecutor’s request for authorization of an investigation, ICC-01/15-12, 27 January 2016. 17 ICC, Pre-Trial Chamber I, Decision on the Prosecutor’s request for authorization of an investigation, ICC-01/15-12, 27 January 2016, para. 39. 18 Ibid. 19 A/CONF.183/SR.9, para. 37. 20 Ibid., para. 38. 21 Ibid. 22 Reprinted in 36 ILM 1507 (1997). 23 Conf. Doc.CCW/CONF.I/16, at 14 (1996), reprinted in 35 ILM 1206 (1996). 24 See ‘Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction’, http://disarmament.un.org/treaties/t/ mine_ban 25 Statement by Ambassador Leonid Skotnikov, Permanent Representative of the Russia Federation, Plenary Meeting of the Conference on Disarmament, Geneva, 27 January 2005. 26 Major Findings, ‘Landmine Monitor Report 2006’. 27 See ‘Russia urged to stop using land mines in its war in Ukraine’, https://abcnews .go.com/US/wireStory/russia-urged-stop-land-mines-war-ukraine-83876941 28 See ‘Landmine Report 2006: China’, http://www.icbl.org/lm/2006/china.html 29 ‘Landmines: China’s Position & Actions at the Stakeholders’ Workshop on the Mine Action Policy Review’, Rome, 7–8 October 2004. 30 Statement by the Chinese Observer Delegation at the 14th Meeting of the States Parties to the Ottawa Convention, 30 November 2015. 31 See ‘Convention on Cluster Munitions’, http://disarmament.un.org/treaties/t/cluster _munitions 32 ‘Russia explains refusal to join cluster bombs convention’, Interfax: Russia & CIS Military Newswire, 8 December 2008. Similar language was used in a September 2009 letter to the CMC. See letter from Sergey Ryabkov, Ministry of Foreign Affairs, to the CMC, 18 September 2009. Unofficial translation by the Russian Ministry of Foreign Affairs, http://archives.the-monitor.org/index.php/cp/display/region_profiles/ theme/3821 33 Statement of the Chinese Observer Delegation at the Seventh Meeting of State Parties to the Cluster Munitions Convention on 4 September 2017, Geneva. 34 Arms Trade Treaty, adopted as G.A. Res. 67/234B (Apr. 2, 2013). As of 8 October 2019, this treaty has 105 state parties. 35 The High Court of Justice, The Queen on the Application of Campaign against Arms Trade v. The Secretary of State for International Trade, [2017] EWHC 1726 (QB), 10 July 2017, see also Riccardo Labianco, ‘UK-Saudi Arabia Arms Trade before the High Court: Questions Following the Judgment’, http://opiniojuris.org/2017/09/13/uk -saudi-arabia-arms-trade-before-the-high-court-questions-following-the-judgment/; Laura Green and David Hamer, ‘The Legality of the UK/Saudi Arabia Arms Trade: A Case Study’, https://www.ejiltalk.org/the-legality-of-the-uk-saudi-arabia-arms-trade-a -case-study/ 36 EU General Statement, ATT Fifth Conference of States Parties on 26–30 August 2019, Geneva. 37 https://www.thearmstradetreaty.org/hyper-images/file/List%20of%20ATT%20States %20Parties%20(alphabetical%20order)(07%20August%202020)/List%20of%20 ATT%20States%20Parties%20(alphabetical%20order)(07%20August%202020).pdf

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38 http://www.cacda.org.cn/a/xiehuihuodong/20210309/4307.html 39 https://www.foxnews.com/politics/trump-announces-us-withdrawal-from-un-arms -trade-treaty 40 ICJ, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) 1996, paras. 85–86. 41 It was adopted by the Conference (by a vote of 122 states in favour, with 1 vote against and 1 abstention). 42 http://disarmament.un.org/treaties/t/tpnw 43 See ‘Joint Press Statement from the Permanent Representatives to the United Nations of the United States, United Kingdom, and France Following the Adoption’, https:// usun.usmission.gov/joint-press-statement-from-the-permanent-representatives-to-the -united-nations-of-the-united-states-united-kingdom-and-france-following-the-adoption/?_ga=2.205395792.1776838514.1578545153-760044265.1578545153 44 Ibid. 45 S/PV.8160, 18 January 2018, p. 10. 46 See https://mp.weixin.qq.com/s/lETR-NsFH8MwpvPnv0wd-g; See also https://cd -geneve.delegfrance.org/Statement-P5-on-the-TPNW-10-22-2018 47 Ibid. 48 See https://cd-geneve.delegfrance.org/P5-general-statement-on-the-TPNW-11-01-2018 49 ‘安理会五常发表反对《禁止核武器条约》联合声明的法律意义’ (Legal Implications of the Joint Statement of the UNSC P5 Opposing the TPNW), 《中国国 际法前沿》(Forefronts of International Law in China), 1 November 2018. 50 North Sea Continental Shelf (Federal Republic of Germany/Denmark), Judgment, ICJ Reports 1969, p. 3, at p. 43, para. 74. 51 Adopted by the International Law Commission at its 70th session, in 2018, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/73/10, para. 65). 52 A/73/10, p. 136. 53 Fisheries Case (Federal Republic of Germany v. Iceland), Judgment of 18 December 1951, ICJ Reports 1951, pp. 116 and 131; Michael Domingues v. United States, Case No. 12.285 (2002), Inter-American Commission on Human Rights, Report No. 62/02, paras. 48 and 49; Sabeh El Leil v. France [GC], No. 34869/05, European Court of Human Rights, 29 June 2011, para. 54; WTO Panel Reports, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R and WT/DS293/R, adopted 21 November 2006, at p. 335, footnote 248; and Siderman de Blake v. Republic of Argentina, United States Court of Appeals for the Ninth Circuit, 965 F.2d 699; 1992 U.S. App., at p. 715, para. 54. 54 A/73/10, p. 152.

References Boylan, D. (2018) ‘Bolton Bolsters Trump’s ‘America first’ foreign policy with robust defense of U.S. sovereignty’, The Washington Post, 10 September, available at https:// www.washingtontimes.com/news/2018/sep/10/john-bolton-the-international-criminal -court-is-il/ Cluster Munition Coalition (2009) ‘Russia-Georgia: New Report Details Use of Cluster Bombs in 2008 War’, Cluster Munition Coalition, 14 April, available at http://www.sto pclustermunitions.org/en-gb/media/news/2009/russia-georgia-new-report-details-use -of-clu.aspx Cluster Munition Coalition (2014) ‘Worrying Evidence of Cluster Munition Use in Ukraine’, Cluster Munition Coalition, 3 July, available at http://www.stopcluster

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munitions.org/en-gb/media/news/2014/worrying-evidence-of-cluster-munition-use-in -ukraine.aspx Cluster Munition Coalition (2015) ‘The Russian Federation Must not Use Clustermunitions in Syria’, Cluster Munition Coalition, 2 October, available at http://www.stopcluster munitions.org/en-gb/media/news/2015/the-russian-federation-must-not-use-cluster -munitions-in-syria.aspx EEAS (2017) ‘Ending the scourge of land mines. EU celebrates 20 years of Ottawa Convention’, European Union External Action, 12 January, available at https://eeas .europa.eu/delegations/lesotho/36572/ending-scourge-land-mines-eu-celebrates-20 -years-ottawa-convention_bs EEAS (2019) ‘Convention on Cluster Munitions: Ninth Meeting of States Parties - EU Statement’, European Union External Action, 2 September, available at https://eeas .europa.eu/delegations/un-geneva/66889/convention-cluster-munitions-ninth-meeting -states-parties-eu-statement_en GOV.UK (2018) ‘P5 Joint Statement on the Treaty on the Non-Proliferation of Nuclear Weapons’, Government of United Kingdom, 24 October, available at https://www.gov .uk/government/news/p5-joint-statement-on-the-treaty-on-the-non-proliferation-of -nuclear-weapons Groves, S. and Bromund, T.R. (2010) ‘The Ottawa Mine Ban Convention: Unacceptable on Substance and Process’, The Heritage Foundation, 13 December, available at https://www.heritage.org/global-politics/report/the-ottawa-mine-ban-convention -unacceptable-substance-and-process Human Rights Watch (2019) ‘Russia/Syria: Flurry of Prohibited Weapons Attacks’, Human Rights Watch, 3 June 2019, available at https://www.hrw.org/news/2019/06/03 /russia/syria-flurry-prohibited-weapons-attacks ICC (1998) ‘Rome Statute of the International Criminal Court’, International Criminal Court of United Nations, available at http://legal.un.org/icc/statute/99_corr/cstatute.htm ICRC (2018) ‘Treaty on the Prohibition of Nuclear Weapons’, International Committee of the Red Cross, 24 April, available at https://www.icrc.org/en/document/2017-treaty -prohibition-nuclear-weapons Jia, B.B. (2006) ‘China and the International Criminal Court: Current Situation’, Singapore Yearbook of International Law, 10, pp. 87–97. Laforge, J. (2018) ‘Nuclear Weapons Ban Treaty Could Become Law Next Year’, Counterpunch, 7 November, available at https://www.counterpunch.org/2018/11/07/ nuclear-weapons-ban-treaty-could-become-law-next-year/ MND (2019) ‘Second Beijing P5 Conference Reaches Six Consensus Points’, Ministry of National Defense of the People’s Republic of China, 1 February, available at http://eng .mod.gov.cn/news/2019-02/01/content_4835606.htm MOFA (2019) ‘Foreign Ministry Spokesperson Geng Shuang’s Remarks on China’s Announcement on the Arms Trade Treaty’, Ministry of Foreign Affairs, The People’s Republic of China, 28 September, available at https://www.fmprc.gov.cn/mfa_eng/ xwfw_665399/s2510_665401/2535_665405/t1703343.shtml MOFA (2017) ‘Foreign Ministry Spokesperson Hua Chunying’s Regular Press Conference on March 20’, Ministry of Foreign Affairs, The People’s Republic of China, 20 March, available at https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1447146 .shtml Newman, E. (2007) A Crisis of Global Institutions? Multilateralism and International Security. London and New York: Routledge, p. 10.

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Peachey, T. and Wiebe, V. (2000) Clusters of Death: The Mennonite Central Committee Cluster Bomb Report. Pennsylvania: Mennonite Central Committee. Scheffer, D. (2008) ‘The US and the International Criminal Court Then and Now’, JURIST, 16 July, available at http://jurist.org/forum/2008/07/us-and-international -criminal-court.php Sorenson, J.D. (2015) ‘United Nations Arms Trade Treaty: Russia’s Justifications for Abstention and the Treaty’s Effectiveness in Application’, Brigham Young University International Law & Management Review, 11(2), pp. 237–257. Sputnik International (2016) ‘Putin Pulls Out from International Criminal Court’, Sputnik International, 16 November, available at https://sputniknews.com/world /201611161047495135-russia-rome-statute-icc/ Taverna, S.M. (1999) ‘The Anti-Personnel Mines Treaty: Protecting Civilians or Protracting Injuries?’, Suffolk Transnational Law Review, 22(2), pp. 567–592. The Coalition (2015) ‘EU a Key Player in ICC System’, The Coalition, 3 February, available at http://www.coalitionfortheicc.org/news/20150203/eu-key-player-icc-system U.S. Department of State (2004) ‘Fact Sheet: New United States Policy on Landmines: Reducing Humanitarian Risk and Saving Lives of United States Soldiers’, U.S. Department of State, 27 February, available at https://2001-2009.state.gov/t/pm/rls/fs /30044.htm U.S. Department of Defense (2008) ‘Cluster Munitions Policy Released’, U.S. Department of Defense, 9 July, available at https://archive.defense.gov/releases/release.aspx ?releaseid=12049 White House (2019) ‘President Donald J. Trump is Defending Our Sovereignty and Constitutional Rights from the United Nations Arms Trade Treaty’, White House, 26 April, available at https://www.whitehouse.gov/briefings-statements/president -donald-j-trump-is-defending-our-sovereignty-and-constitutional-rights-from-the -united-nations-arms-trade-treaty/ Worldatlas (2019) ‘World’s Largest Exporters of Arms’, Worldatlas, 6 June, available at https://www.worldatlas.com/articles/world-s-largest-exporters-of-arms.html Zhao, T. and Wang, R. (2017) ‘China and the Nuclear Weapons Prohibition Treaty’, Carnegie-Tsinghua Center, 21 September, available at https://carnegietsinghua.org /2017/09/21/china-and-nuclear-weapons-prohibition-treaty-pub-73488 Zhu, L. (2010) ‘A Test of International Humanitarian Law on Landmines in Recent Armed Conflicts: Problems and Possible Solutions’, in M.J. Matson and D. Momtaz (eds.), Rules and Institutions of International Humanitarian Law Put to the Test of Recent Armed Conflicts, Leiden and Boston: Martinus Nijhoff Publishers.

5

Multilateralism in Law of the Sea and Its Implications for the South China Sea Chen-Ju Chen

Introduction To address emergent global challenges, a rules-based international order, or multilateralism, has been established and strengthened. Yet, discussions of multilateralist approaches to such challenges have mostly centred on economic issues. What’s more, such discussions have rarely involved issues related to the law of the sea. In this field, the United Nations Convention on the Law of the Sea (LOSC)1 and its further developments have, in fact, reflected this multilateral rules-based international order to ensure both the stability and prosperity of the sea. All the same, regional peace and stability in the South China Sea (SCS) have been undermined by the constant military activities of the People’s Republic of China (PRC). Tensions in the SCS have not eased following the Arbitral Award in the Philippines v. PRC SCS Arbitration (the Award), though the SCS region has attracted much global attention since the initiation of the aforementioned arbitral procedure on 19 February 2013. While tensions in the SCS might have been expected to ease after the decision was rendered on 12 July 2016,2 the Award made several major conclusions which did not better the regional political situation. China’s military activities in the SCS have accelerated, including island building and military base construction, while the US has attempted to require China to “respect” the Award, re-affirmed its Freedom of Navigation (FON) policy and conducted its own SCS military activities in competition with those of China. Via a statement on 15 July 2016, the EU called upon all concerned parties to address both remaining and further related issues via “negotiations and other peaceful means.” Likewise, these parties were asked to refrain from possible tension-raising activities.3 More importantly, all these actions reflected the EU’s status as a strong supporter of multilateral rules-based international order in the law of the sea. The Award has not lessened or ended the heated competition between differing claimants and other third states. In the SCS, the major players such as China and the US have constantly flexed their respective military muscles by sending military vessels and aircrafts to the SCS. Such military activities have also elicited the involvement of their respective allies such as Australia and Russia. As per a 2019 US Congressional Research Service Report, the SCS region has emerged DOI: 10.4324/9781003167358-7

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as an arena of competing US-China strategies, with the Indo-Pacific Strategy of the US facing off against China’s Belt and Road Initiative. The US, broadly, and the Trump administration, specifically, have considered various actions to strategically compete with China in the South and East China Seas. Previously, the issues of whether or not the US should ratify the LOSC have been discussed. A list of US legislative activities was also discussed in 2019. This list includes the Fiscal Year 2020 National Defense Authorization Act, the South China Sea and East China Sea Sanctions Act of 2019 and the US-China Economic and Security Act of 2019 (Congressional Research Service 2019, pp. 22–27). In early 2021, the Biden administration reaffirmed its commitments with its East Asian allies and also rejected “China’s maritime claims in the SCS to the extent they exceed the maritime zones that China is permitted to claim under international law as reflected in the 1982 Law of the Sea Convention” (US Department of States 2021). Also drawn to the SCS have been the EU member states including France and the United Kingdom. Such involvement has seen their respective warships sent to the SCS to challenge those of China (Zhen 2018). In March 2021, Germany also announced its plan to send its warships to the SCS region (Reuters 2021). With greater tension in the SCS, attention has been drawn to how the EU approaches such situations, especially as the EU has long been committed to the multilateral rules-based international order. With the EU’s historical support of the development, the LOSC – like other multilateral treaties – was also opened for signatures by both states and international organisations (e.g. the EU) to which competence has been delegated in matters touching upon the LOSC (Churchill & Lowe 1999, p. 18).4 In a recent statement by the EU Spokesperson for Foreign Affairs and Security Policy, concerns were raised about how these unilateral actions could both worsen the maritime security environment and threaten peaceful regional economic developments (EEAS 2019e). The EU has urged all parties in this region to exercise self-restraint, take concrete steps towards reverting to the status quo ante, refrain from regional militarisation and peacefully resolve disputes in accordance with international law – namely the LOSC. The EU has suggested that the relevant parties seek, when necessary and useful, third-party assistance via mediation or arbitration in facilitating settlement of such parties’ respective claims (EEAS 2019e). Also, the EU has strongly supported the Association of South-East Asian Nations (ASEAN)-led processes. Such support reflects the desire of the EU to promote both a rules-based regional and international order, consolidate multilateral cooperation and galvanise closer cooperation with third parties. Thus, the EU has wanted to conclude an effective, substantive and legally binding SCS Code of Conduct between the ASEAN and China (SCS CoC). The EU has also considered a legal order for the seas and oceans, maritime security and cooperation and freedom of navigation and overflight. All such considerations reflect the varying interests of all states (EEAS 2019a). Overall, the EU, as a supporter and not as a negotiator, reflects what Stang has observed, i.e. that the EU could continue to act as a driver of multilateralism, but the EU should not necessarily be “defined” by that stance (Stang 2016, pp. 31–34).

Multilateralism in Law of the Sea 91 With all the aforesaid developments, this chapter analyses three major players’ (China, US and EU) respective attitudes towards, and interactions with, SCS conflicts and relevant law of the sea developments. These attitudes and interactions are viewed through the lenses of the multilateral rules-based international order. Along with brief details about multilateralist concepts within the law of the sea are more analyses concerning these three players’ respective attitudes towards, and practices of, multilateralism or unilateralism in fields relevant to the law of the sea. These attitudes and practices are viewed through the lenses of differing strategies, politics and modes of cooperation with other partners. Also examined are the various interactions between these three players in facing certain SCS conflicts. The conclusion considers to what extent these three players impact the multilateral law of the sea development as well as the SCS disputes, in particular whether and how the EU can play a role in the SCS-related disputes.

A Multilateral Rules-Based International Order within the Law of the Sea Multilateralism v. Unilateralism Following the Introduction prepared by the editors which discussed multilateralism and unilateralism, this section intends to investigate these briefly from a more legal perspective. In international legal and relations studies, Nollkaemper reflected on multilateralism as a cooperative approach to states’ foreign affairs, and unilateralism as a more independent (e.g. armed interventions) or isolationist tack (e.g. decisions not to join a particular multilateral treaty regime).5 Enforcing multilateralism can take a number of forms, including diplomacy, negotiation, international conferences and congresses, treaties and international organisations.6 In international relations, regime theory recognises the value of multilateralism as it postulates that states cooperate to purse common interests and use regimes to coordinate their respective actions.7 This also echoes the Introduction prepared by the editors which refers to O. Keohane’s definition on multilateralism. From an international law perspective, multilateralism operates through law-making in the form of multilateral treaties, in law-enforcement via collective sanctions based on UN Security Council resolutions or as cases in international dispute settlement mechanisms.8 Multilateralism can be seen at work in the law of the sea through its 20th-century codification activities, such as the practice of meetings of state parties to the LOSC, the Commission on the Limits of the Continental Shelf (CLCS) and the International Seabed Authority (ISA), and the dispute settlement procedures established by the LOSC’s Part XV. Likewise, states’ actions based on self-interest are not necessarily viewed as unilateralist, nor are they automatically excluded from being recognised as multilateralist. For instance, the US has supported post-WWII multilateralism although that support has been driven by self-interest.9 In the evolution of the law of the sea, the US acted unilaterally, as in the 1945 US Presidential Proclamation No. 2667, Policy of the US with Respect to the Natural Resources of the Subsoil

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and Sea Bed of the Continental Shelf, and No. 2668, Policy of the US with Respect to Coastal Fisheries in Certain Areas of the High Seas (1945 Truman Proclamations), to claim its maritime zones and maritime interests. Similar claims have been made by other states. Although the US took part in three UN Conferences on the Law of the Sea, the US, in fact, failed to ratify the LOSC due to concerns over the LOSC’s Part XI. Although not a contracting party, the US still developed its own FON policy and other LOSC-based national practices and policies. Such actions reveal that US policies are determined by self-interest, although self-interest is not considered a necessary criterion in distinguishing between unilateralism and multilateralism. Multilateralism as the International Mainstream Multilateral treaties or institutions are considered efficient ways of creating and regulating international affairs, and unilateralist actions may be regarded as possibly having similar effects. Unilateral actions, via state practice (e.g. legislation, protest, acquiescence and recognition), are also a substantial element in the formation of customary international law.10 In the development and evolution of law of the sea, there has been a general multilateralist trend moving in tandem with a unilateralist one. In previous centuries, law of the sea developments have gradually shown an extension from a unilateral approach towards a multilateral one.11 Even when a multilateral approach becomes somewhat “mainstream” in its development, unilateral actions can still trigger the further development and application of the law of the sea.12 This historical development pattern mostly reflected the differing interests of European states. Since the 17th century, several major law of the sea doctrines have arisen. For instance, Mare Liberum (Freedom of the Seas) proposed by the Dutch jurist Hugo Grotius reflected the needs of the Dutch against Portugal claiming sovereignty over certain parts of the seas. Per natural law, the Freedom of the Seas doctrine held that the sea must, by its nature, be free. It was thus held not susceptible to occupation. In contrast, Mare Clausum (Closed Seas doctrine) proposed by the Englishman John Selden considered that the seas – like the land – could be subject to occupation and control by a state and that, in fact, some states had already exercised such power in navigation and fishing in certain parts of the seas (Treves 2015, p. 4). From Grotius’ perspective, as the ocean is considered res communius (global commons) (Guilfoyle 2015, pp. 203–204), ocean governance relies on a multilateralist approach. Respective European states’ interests in opening the sea to trade and navigation were mirrored in Grotius’s Freedom of the Seas doctrine. The first time that this doctrine was conventionally recognised was via the 1882 Convention Regulating the Police of the North Sea Fisheries.13 In the 20th century, the UN’s codification process brought this doctrine to the forefront.14 A major extension of multilateralism came with the First UN Conference on the Law of the Sea and the adoption of the 1958 Conventions on the Law of the Sea.15 This progress was furthered by the third UN Conference on the Law of the Sea,

Multilateralism in Law of the Sea 93 which ensured that developments governing the law of the sea took place within a multilateral framework.16 With this multilateralism approach, the LOSC, known as “a Constitution for the Oceans,” defines the rights and obligations of different States with respect to their respective usages of the oceans. This provides not only the legal status, limits and rules of different maritime zones, but also the provisions for various marine activities, the marine environment itself and marine resources-related management. Post-LOSC adoption, development of the law of the sea continued with negotiations taking place within the LOSC framework, including issues concerning deep seabed mining, fisheries resources and marine biodiversity in areas beyond national jurisdiction (ABNJ). As the LOSC requires contracting parties to cooperate in facing certain challenges, developments in other relevant international organisations also had to be considered, for instance in the International Maritime Organization (IMO) and the UN Food and Agriculture Organization (FAO) (Churchill & Lowe 1999, pp. 22–24). Unilateralism Coexists Despite some multilateral developments, unilateral approaches continued to prevail, as in states’ maritime claims. These developments find echoes in law of the sea doctrines. Even though Mare Liberum has dominated law of the sea developments since the 19th century, Mare Liberum advocates still agree that, per coastal states’ maritime claims, these states still enjoy some rights to regulate activities in the seas adjoining their respective coasts (Churchill & Lowe 1999, p. 71). Likewise, examples could be given with respect to the development of extensions of state sovereignty into its territorial sea. Also, since the development of the 1945 Truman Proclamations, coastal states have successively claimed their respective continental shelves (Churchill & Lowe 1999, pp. 144, 160). Even post-LOSC adoption, unilateral actions have been required by the LOSC, such as the unilateral extensions of jurisdiction (i.e. exclusive economic zones, EEZ), and unilateral standards and enforcement of measures intended to promote fisheries conservation and environmental protection.17 Thus, all the aforesaid doctrines leave both some room and flexibility for state action in their respective ocean jurisdictions. With these points in mind, the following sections analyse three players’ practices in terms of multilateralism, and in some cases unilateralism, with respect to law of the sea developments, particularly when considering SCS disputes. Also analysed is the extent to which multilateralism or unilateralism have developed in all three players’ respective practices in the maritime sphere, and how such practices interact with one another against the backdrop of SCS disputes.

China Before China’s ratification of the LOSC on 7 June 1996, and via a series of legislative moves, China had already claimed its maritime zones on the basis of the LOSC.18 This claim echoed law of the sea developments, as it exhibited elements of both multilateralist and unilateralist doctrines. Given its extensive maritime

94 Chen-Ju Chen claims, China soon encountered disputes over both territorial sovereignty and overlapping maritime claims in both the South and East China Seas. Together, these disputes have raised doubts in China regarding the LOSC-established legal order. Due to China’s late 19th-century history of being subject to unequal treaties, it has been rather conservative with respect to law of the sea development, and reluctant to accept the FON concept proposed by the naval powers (Gao 1991). This historical legacy may result in China selectively exercising a unilateral prerogative in the face of a multilateral international order, for out of its history of unequal treaties, and of tributary relations with neighbouring states, China has emerged another type of multilateralist selectivity which is different from the US’ selectivity as analysed below. It is observed that China contests regional rules and orders, and instead develops its own novel interpretations to advance its claims and interests in the region (Morrison 2018, p. 28), all the while remaining an LOSC contracting party to protect its interests, per the views of Fontaine and Rapp-Hooper (Fontaine and Rapp-Hooper 2016). The aforesaid practices could be seen in China’s refusal to participate in the arbitral procedure initiated by the Philippines based on the LOSC’s Annex VII, and rejection of the jurisdiction of the arbitral tribunal. On 12 July 2016, the tribunal finally rendered a default award, concluding that China had no legal basis to claim historic rights to resources within sea areas falling within the “nine-dash line”; that certain sea areas are within the Philippines’ EEZ as those areas do not overlap with any possible entitlement of China; that certain Chinese acts have violated the Philippines’ sovereign rights in its EEZ; and that certain Chinese activities did not, in fact, fulfil its obligations in both maritime environmental protection and fisheries resources conservation.19 Yet, China considered the decision “null and void” and refused to abide by it. Although the Award was binding on China, China’s obstinacy has negated the Award’s impact. With both China’s ongoing military exercises and presence, even following the Award, concerns are raised that China’s attempts to transform the status quo by force could constitute a threat to the international legal order. Doubts have been also raised about whether China would withdraw from the LOSC after weighing the pros and cons of withdrawal (Valencia 2019). Although such doubts might weaken the multilateral international order established by the LOSC, the US, as a competitor to China in the maritime domain, has challenged China through its FON operations (FONOP), though it too is a non-party to the LOSC. In the SCS, US-China tensions have become more heated. In 2019, China invited the EU to join China’s Belt and Road Initiative. The possibility of the EU joining could have significant political and security implications for both the EU and the US. Via its Belt and Road Initiative, China has invested in and built overseas sea ports, including in Greece’s Piraeus and Italy’s Trieste and Genoa. As China has expanded its fleet of both military vessels and missiles, it appears that China holds ambitions to become a naval superpower with global reach (Congressional Research Service 2019, pp. 22–23). With both the US’s primary, and China’s emerging, naval power statuses in mind, the EU could prove

Multilateralism in Law of the Sea 95 a vital player in certain SCS disputes. While there are questions as to whom the EU would back in certain circumstances, the US or China, it is vital that the EU support multilateralism and interact cautiously with China. Such caution will help blunt China’s efforts to expand its power in the maritime sphere and shift the US-China balance.

US The US has viewed multilateralism as reflecting the gradual emergence of international institutions, norms and rules capable of stabilising world politics and ultimately safeguarding the various interests of the US (Mazarr et al. 2016, p. 3). Seen thus, the US is able to act in its self-interest while pursuing strategies via multilateralism or unilateralism. Thus, it is not surprising that some leading states consider the established order as designed to perpetuate American hegemony (Mazarr et al. 2016, p. 3). In the 18th and 19th centuries, due to both the US’s geopolitical situation and ideals at the time, US leaders considered multilateral or bilateral engagements rather restrictive. Gradually, during the Cold War era, the US grew more open to multilateral security arrangements, if not always to economic and social cooperation. Since then, the US executive branch (under both Democratic and Republican Party control) has commonly sought to pursue a number of multilateral endeavours and pushed back against scepticism within the US legislative branch (i.e. the US Congressional House and Senate) (Morrison 2018, pp. 30–31). Overall, such selectivity and the reasons therefore may explain why the US is a contracting party to more than 600 multilateral conventions and organisations, and yet refuses to sign more than a few major ones. For instance, while the US was a leader of the LOSC negotiations, it has been reluctant to accept the “Area” provisions under the LOSC that established the ISA to manage the seabed resources, and the US Congress has not ratified the LOSC, despite support from successive US presidents and Defense Departments (Morrison 2018, p. 33). Two key debates still continue concerning US ratification of the LOSC. US concerns include ensuring navigational rights; the need to have China comply with the LOSC; the inability, via the LOSC, to resolve regional maritime disputes; the responses of ASEAN member states; the inadequacy of the LOSC’s customary law to safeguard US interests; and the need to be able to defend its positions and interests by other means (Congressional Research Service 2019, pp. 23–24). Until now, with respect to the LOSC and its implementing agreements, the US has only participated in the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement). Past US unilateral practices have included the 1945 Truman Proclamations following which other states staked claims to their respective maritime zones, and the Freedom of Navigation policy which challenged coastal states’ positions and maritime claims on the LOSC. For example, when facing China’s excessive

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maritime claims and rejection of the SCS Arbitral Tribunal’s jurisdiction and Award, the US employed the FONOP to compel China to resolve its SCS disputes via negotiations – especially when these negotiations aim to reach a conclusion of the SCS CoC (Mazarr et al. 2016, p. 21). In these few years, the FONOP has been further developed and conducted beyond the unilateral level. The US’s Asia Reassurance Initiative Act (ARIA), signed into effect by US President Trump on 31 December 2018, emphasises its commitment to the FON under international law, to the promotion of peaceful resolutions of maritime and territorial disputes and to the expansion of security and defence cooperation with allies and partners.20 This ARIA transformed the unilateral mode of FONOP to be more extensively internationally cooperative, and the US invited its allies to join in policy enforcement. The ARIA provided more enforcement details concerning the Indo-Pacific Strategy initiated by the US in response to geopolitical competition from China as it builds out its Belt and Road Initiative. Via the ARIA, the US expressed its findings regarding China’s illegal construction and militarisation of artificial features in the SCS and coercive economic practices. Also addressed by the US was that China has undermined the rules-based international order in the Indo-Pacific region. Furthermore, the ARIA emphasises, “the security dialogue between the US, Australia, India, and Japan is vital to address pressing security challenges in the Indo-Pacific region in order to promote the rules-based international order, respect for international law; and a free and open Indo-Pacific.”21 Also, the ARIA strengthens the US’s commitment to treaty alliances in the IndoPacific region, which includes those with Japan, South Korea, Australia, the Philippines and Thailand;22 its strategic partnership with India and ASEAN;23 its trilateral security partnership with South Korea and Japan;24 and its security partnerships in Southeast Asia, including the commitments made to Indonesia, Malaysia, Singapore and Vietnam.25 In pursuit of the FON, it is the US’s policy to conduct, in accordance with applicable international law, as part of its global FON Program, regular freedom of navigation and overflight operations in the Indo-Pacific region. The US also promotes genuine multilateral negotiations to peacefully resolve maritime disputes in the SCS.26 Thus, a joint Indo-Pacific diplomatic strategy has been established to work with US allies and partners to conduct joint maritime training and FONOP in the Indo-Pacific region, including the South and East China Seas.27 This strategy is obviously China-related as China considers these regional seas as “core interests” (Tonnesson 2014, p. 224). Likewise, this strategy can be seen as another example of the US’s “multilateralism” based on selectivity and self-interests as, via its Indo-Pacific strategy, the US has proactively viewed China as a major challenger. This “multilateralism” is intended to overcome China’s unilateral expansion in the SCS region. Also, Parniani observed that the main direction of this strategy regarding the FON Program and maritime security would not be changed by a large margin under the Biden administration (Parpiani 2021). The first conduct of the FONOP under the Biden administration in February 2021 has confirmed this comment (Commander, US 7th Fleet 2021).

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EU Multilateralism is rooted in the Westphalian state-centric tradition out of which contemporary international law developed. Thus, the multilateral rules-based international order remains entrenched in the EU’s DNA per Ujvari’s description (Ujivari 2016, p. 1). The EU’s attitudes towards the multilateralist approaches within the development of the law of the sea also show such tendencies. Such tendencies can be observed via the EU’s participation in relevant international fora and embrace of relevant policies. This section examines how respective differences exist between the attitudes of the EU, the US and China towards the multilateral rules-based international order within the law of the sea. Supporting Multilateralism in the Law of the Sea Development Perhaps the most significant way to observe the EU’s support of multilateralism in the development of the law of the sea is to analyse the EU’s participation in relevant treaties and organisations. By 2019, the LOSC had been ratified by 168 parties (including the EU).28 The European Community joined the LOSC in 1998. Its legal basis was established with much pressure from the then-member states of the European Economic Community (EEC) during the third UN Conference on the Law of the Sea between 1973 and 1982 (Buga 2015, p. 32). Thus, the LOSC’s Article 305 provides a set of provisions opening the door for a non-State actor to be a contracting party to the LOSC. One of the prerequisites is that the international organisation is constituted by states to which its member states have transferred competence over matters governed by the LOSC, which includes the competence to enter into treaties in respect of such matters.29 Accordingly, on 23 March 1998, the EC Council concluded its decision to participate in the LOSC and the EC formally became a contracting party to the LOSC.30 With this decision, the Council of the EC declared its competence over fishing activities and emphasised that along with the agreement with the other states, the EC aimed to strike a balance between both the rights and obligations of littoral states, and those of states carrying on fishing activities on the high seas in order to pursue the sustainable exploitation of fisheries resources. As the EC high-sea fishing industry faces major challenges resulting from the lack of a stable international legal order and real cooperative implementation, the EC has been very proactively consequential in international fisheries law developments. Since the 1990s, the EC has both supported and participated as a member organisation in the legal instruments developed to supplement and substantialise the LOSC fisheries provisions.31 The EC member states’ fishing activities in both international and third states’ waters have been thus managed at the Community level. Likewise, the EC/EU strengthens its cooperation with the developing countries to increase their respective fisheries management effectiveness. Also being supported are international community efforts to combat illegal, unreported and unregulated fisheries (IUU), in particular within the Regional Fisheries Organizations’ framework.

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To date, the EU continues to stand, as a single international organisation, as a contracting party to the LOSC. Collectively, the EU exercises the voting rights of its 28 member states, all of which are LOSC contracting parties. Buga observed that there is little likelihood of any other organisations becoming parties in the near future.32 Likewise, Churchill and Lowe have long observed that international organisations (e.g. the FAO and IMO) have played significant roles in the development of the law of the sea (Churchill & Lowe 1999, pp. 23–24). To cooperate in and through these organisations also demonstrates the states’ support for multilateralism. Thus, the EU is not only itself an international organisation involved in the law of the sea development, but also as a member organisation to the FAO. As well, the European Commission and the European Space Agency respectively concluded agreements of cooperation with the IMO in 1974. As both the EU and its member states have long supported development of the law of the sea via their participation in various relevant treaties and organisations, resorting to multilateralism can be seen as expressive of their respective attitudes towards ocean governance and maritime disputes. Yet, with its limited competence, the EU focuses more on the fisheries field. Despite being a subject (i.e. international organisation) of international law, one should be aware that the EU is not able to unilaterally declare its maritime zones, which is a right exclusive to “states.” Yet, the EU has developed a series of policies to demonstrate its commitment to the multilateral development of the law of the sea.33 This multilateralism has driven not only the EU’s attitudes towards maritime disputes, but also, internally, the EU’s policy-making and, externally, participation in other international organisations and cooperation with third states. Cooperating in the Maritime Security Sphere The EU has built close cooperative ties with the North Atlantic Treaty Organization (NATO) as a central military and political cooperation mechanism. EU-NATO formal cooperation could be traced back to the early 2000s. Since then, it has expanded to encompass the maritime security sphere. NATO focuses on security concerns originating from NATO’s immediate neighbourhood, which includes Russia, North Africa, and the Middle East. Yet as NATO is clearly geographically disconnected from the SCS, it has, as yet, not developed specific SCS policies. For instance, in 2016, before the SCS Arbitral Award was rendered, NATO decided to stay out of SCS disputes as NATO had no legal basis for intervening militarily. Even so, NATO has continued to support regional solutions, based on political and diplomatic negotiations, and has urged parties embroiled in such disputes to adhere to both relevant international rules and norms (Daiss 2016). In the face of China’s rise, even after the US issued both its new National Security Strategy and Indo-Pacific Strategy, the attitude of NATO towards China remains unclear. Although both British and French warships have been sent to the SCS, doubts have been expressed as to whether NATO would also dispatch its own Standing Naval Forces under the control of NATO Allied Maritime

Multilateralism in Law of the Sea 99 Command to this region, as China and its Belt and Road Initiative have had great impacts (infrastructure investment-wise) on both Eastern and Southern Europe (Bo 2019). Even though NATO can deploy its naval force to other regions than the Atlantic, the SCS remains rather far outside its field of operations, for several reasons: first, NATO’s limited number of maritime assets; second, the sheer logistical difficulties and operating costs of operating at such a vast geographical range; third, NATO’s rather limited geographical presence outside of the North Atlantic area (Pothier 2019). With all this in mind, China’s growing power and the important role it plays between NATO and Russia should be considered. As for future NATO-EU consultations, China’s role might even become a central topic. As the EU views China as a systemic rival, and the US considers China a major challenger, NATO may need to change its view on China and SCS-related maritime issues. This is particularly so if the US continues to play a dominant role in NATO and in the bilateral relations between the US and its non-NATO Asia-Pacific allies, such as South Korea, Japan, the Philippines, Australia and New Zealand (all of whom are the US’s Indo-Pacific partners as well). Thus, the EU – perhaps via NATO – might be inevitably pulled into SCS-related discourses. The EU has established maritime security cooperation with the ASEAN, and since 1978, there have been regular EU-ASEAN political dialogues. Via the 1980 Cooperation Agreement between Member Countries of ASEAN and European Community in Kuala Lumpur, the EU-ASEAN cooperation was formally established. To further enhance security cooperation in, and with, Asia, the EU and ASEAN agreed to upgrade their relations to a Strategic Partnership and strengthened security and defence cooperation. Amongst the possible areas of interest, maritime security was identified as a priority. Ultimately, with the EU’s Asian partners, the EU’s Naval Operation Atalanta (EUNAVFOR) was established to deter, prevent and repress any possible acts of piracy and armed robbery off the Somalian coastlines (in Africa) (EEAS 2019c). On 21 January 2019, the 22nd EU-ASEAN ministerial meeting was held, with representatives to further strengthen the EU-ASEAN relations and to work towards resolving the SCS-related disputes. Both the EU and ASEAN emphasised the vitality of the full and effective implementation of the 2002 Declaration on the Conduct of Parties in the SCS in its entirety. Likewise, the EU expressed support for having the ASEAN member states and China work towards the early conclusion of an effective SCS CoC consistent with international law, including the LOSC (Council of the EU 2019). In the maritime domain, the vitality of respect for the rule of law was underlined; also stressed were the sovereignty and territorial integrity of States, maritime security and safety, freedom of navigation and overflight, peaceful resolution of disputes, per the universally recognised principles of international law that include the LOSC and relevant standards and recommended practices of both the International Civil Aviation Organization and the IMO. Further emphasised was the importance of the non-militarisation of disputes and self-restraint in their resolution (Council of the EU 2019). All

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these developments have demonstrated that in the EU-ASEAN partnership, the EU has an opportunity to support multilateral rules-based international order in this region. Among the ASEAN member states, the practices associated with EU-Vietnam cooperation should be highlighted. Following EU-Vietnamese diplomatic ties established in the 1990s, such ties and cooperation have covered various political, trade and development issues. To further strengthen such ties, the EU and Vietnam signed the 1995 Framework Cooperation Agreement, and the 2012 Framework Agreement on Comprehensive Partnership and Cooperation. Moreover, both trade and investment cooperation reached a new era with the signing of the 2015 Free Trade Agreement and the 2019 Investment Protection Agreement (EEAS 2016). In August 2019, both the EU’s High Representative for Foreign Affairs and the EC’s Security Policy/Vice-President met with Vietnam’s Minister of National Defense. Discussed in this meeting were ways to develop a stronger defence and security cooperation partnership based on international law. Among the commitments made were both sides agreeing to reinforce their respective engagements in both maintaining freedom of navigation and overflight, and responding to traditional and non-traditional challenges such as search and rescue, the fight against piracy and armed robbery against ships, organised crime and illegal trafficking in compliance with international law that includes the LOSC (EEAS 2019d). In this meeting, although the SCS disputes were not directly touched upon, this was the first time that the EU entered into such a commitment with a Southeast Asian state. This security cooperation was strengthened even more on 17 October 2019 with the Framework Participation Agreement that facilitated Vietnam’s participation in and contribution to the missions and operations of the EU’s Common Security and Defense Policy (EEAS 2019b). This Agreement confirmed the EU-Vietnamese shared commitments to ensure both peace and security in their respective neighbourhoods and beyond, along with safeguarding the multilateral rules-based international order. Pre-Agreement, the EU has had signed 3 agreements of this kind with other Asia-Pacific states (e.g. New Zealand, Australia, South Korea) and 15 other agreements with non-Asia-Pacific states. Meaningfully for the EU, it was the first one of this kind to be signed with an SCS claimant state (Vietnam). This tie between the EU and Vietnam may bring the EU to the SCS region as Vietnam is standing on the front line of the SCS disputes with China. With these developments, if SCS tensions were to rise further, the expansion of the EU’s maritime activities to this region might be foreseeable, per Heydarian (Heydarian 2019). After the 2016 Award, more attention has been attracted to both Vietnam’s actions against China’s activities in the SCS and Vietnam’s vital role in relevant SCS CoC negotiations. What’s more, the EU might enter the SCS per the established EU-Vietnam cooperation. Yet, this does not mean that the EU would necessarily stand behind Vietnam in case of a China-Vietnam standoff. Per the EU-Asia Security factsheet, both the EU and China have also established bilateral security and defence cooperation in various fields that include nonproliferation, cyber security, military-to-military engagements and defence plus

Multilateralism in Law of the Sea 101 security consultations (EEAS 2019a). Although the EU has not entered into the Framework Participation Agreement with China, the extents of the EU’s security and defence cooperation with its Asia-Pacific partners vary; the cooperation with China is not lesser than with its other partners.34 Among the EU’s AsiaPacific partners, Australia, Japan, South Korea and New Zealand altogether are also NATO’s “partners across the globe” whose relations with NATO are also strengthening to address the shared security challenges (Schreer 2012, pp. 1–6). These partners namely view NATO as a means of cooperation with the US, while they also establish security cooperation with the EU. The aforesaid cooperation seems fragmented, yet inter-connected in some sense. If the SCS tensions rise again, in particular if the US-China standoff rises – via the EU’s Asia-Pacific partners, there is thus a possibility for the EU or even NATO to enter into the SCS. Yet, the EU would still face a dilemma on one hand due to its commitment with China on EU-China bilateral security and defence cooperation in various fields. On the other hand, this could allow the EU to act as an intermediary agent to mediate any possible disputes between other states and China. With respect to the EU’s security and prosperity, the EU and its credibility have relied upon broader international rules and norms, and multilateral cooperation. Thus, a well-functioning multilateral system has been significant. The EU and its member states have left their impacts on relevant international law-making organisations (Dworkin & Gowan 2019, pp. 1–2). Yet, this multilateralism has been challenged by both the US and China. As the most powerful and potentially disruptive actor, the US enjoys exceptional powers in international organisations and is able to undermine these organisations’ functions. At the same time, China has seized opportunities presented by gaps in US leadership and attempted to widen divisions between the US and EU. The EU has thus been targeted for being peeled away from the US, or co-option into multilateral frameworks (Dworkin & Gowan 2019, pp. 1–2). Still, the EU might play a key role between the US and China. With the EU’s steadfast support of multilateralism, in the face of two more selectively multilateralist players, the EU might in fact – via its participation in international regimes, and cooperation with international organisations and Asia-Pacific partners emphasising the multilateral rules-based international order – bring both peace and stability to the SCS. Thus, EU cooperation with other relevant international organisations and the third states needs to be further strengthened.

Conclusion The SCS has become a fraught geopolitical area given the US-China confrontation. From a multilateralist view, although China has participated formally in relevant treaties and organisations, China’s behaviour and practices, which aim to expand its maritime claims and zone of control in this region, are certainly taking place on a unilateral basis. Informed by its own selective and self-interest-driven multilateralism, the US has proposed the establishment of the rules-based international order in the SCS, even though the US is not a contracting party to

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the LOSC. As China – via its Belt and Road Initiative – intends to eventually become a naval superpower, the US – via its Indo-Pacific Strategy – is attempting to interact with it, and constrain China’s impact on broader regions. In practical terms, both the US and China tend to be unilateralist, yet the Indo-Pacific Strategy and the current US ARIA further emphasise the US’s commitments to its treaty alliances, strategic partners, security partners, etc. With the respective actions of China and US taking place on unilateral, bilateral or selectively multilateral bases, more efforts are needed to pursue a universal, multilateral rules-based international order of the seas. Against all these discourses, the EU, as a long-time supporter of multilateralism, will clearly not be absent. The EU’s attitudes towards the multilateral rules-based international order have long been reflected in the law of the sea development, especially as both the EU’s support and participation in this multilateral development are able to secure maritime interests the states have pursued since the early 17th century when the Mare Liberum was published. Even though EU-NATO cooperation in the maritime domain was limited to Atlantic affairs and Indian Ocean piracy-related issues, both maritime security and SCS-related issues have also been addressed via the EU-NATO partnership. Also, the EU has called upon concerned parties to make effective use of negotiations and other peaceful means to resolve SCS-related disputes, and urged the conclusion of the SCS CoC. Given both the strong EU-ASEAN and EU-Vietnam partnerships, along with the EU’s respective security and defence cooperation with China and relations with the US – the EU could certainly play a key role in all the above. Thus, more efforts can unequivocally be made in all the aforesaid regards.

Notes 1 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 (hereinafter the LOSC). 2 Award, PCA Cases No. 2013-19, The South China Sea Arbitration, Permanent Court of Arbitration, 12 July 2016 (hereinafter the Award). 3 Council of the EU (2016) Declaration by HRVP on Behalf of EU on Award Rendered in Arbitration between Philippines and China, Press Release, EU-Asia Centre, 15 July. 4 The LOSC’s Articles 305–307. 5 André Nollkaemper, Unilateralism/Multilateralism, in Max Planck Encyclopedias of International Law, OUP, 2015, paras. 1–2. 6 Ibid., paras. 3–4. 7 Ibid., para. 6. 8 Ibid., para. 7. 9 Ibid., para. 6. 10 Ibid., para. 12. 11 Ibid., para. 29. 12 Ibid. 13 A treaty signed between Her Majesty, the German Emperor, King of Prussia, the King of the Belgians, the King of Denmark, the President of the French Republic and the King of the Netherlands.

Multilateralism in Law of the Sea 103 14 Nollkaemper, supra note 5, para. 30. 15 These include the Convention on the Territorial Sea and the Contiguous Zone, the Convention on the High Seas, the Convention on Fishing and Conservation of the Living Resources of the High Seas and the Convention on the Continental Shelf. 16 Nollkaemper, supra note 5, para. 31. 17 Nollkaemper, supra note 5, para. 32. Such as the LOSC’s Articles 113–115, 207(1), 208(1), 209(2), 210(1), 211(2), 212(1), 213, 214, 220(4) and 246(3). 18 Namely, Law on the Territorial Sea and the Contiguous Zone on 25 February 1992, Declaration of PRC Government on the Baselines of the Territorial Sea on 15 May 1996 and EEZ and Continental Shelf Act of 26 June 1998, see https://www.un.org/ Depts/los/LEGISLATIONANDTREATIES/STATEFILES/CHN.htm 19 PCA (2016) The South China Sea Arbitration of The Republic of The Philippines v. The People’s Republic of China, Press Release, 12 July. 20 The ARIA’s Section 102. 21 Ibid, Section 207. 22 Ibid., Section 202. 23 Ibid., Sections 204–205. 24 Ibid., Section 206. 25 Ibid., Section 208. 26 Ibid., Section 213. 27 Ibid., Section 123. 28 UN Division for Ocean Affairs and the Law of the Sea, ‘Chronological Lists of Ratifications of, Accessions and Successions to the Convention and the Related Agreements’, available at https://www.un.org/depts/los/reference_files/chronological _lists_of_ratifications.htm 29 Article 1 of the LOSC’s Annex IX. 30 98/392/EC of Council Decision concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof; OJ L179, 23 June 1998, p. 1. 31 Included are the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement), the FAO Code of Conduct for Responsible Fisheries, the Fish Stocks Agreement, the Convention on Biological Diversity (CBD), Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Agreement on Port State Measures) and Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). 32 98/392/EC of Council Decision concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof; OJ L179, 23 June 1998, p. 32. 33 Such as the 2014 EU Maritime Security Strategy, the 2016 EU Global Strategy for Foreign and Security Policy, the 2018 EU Action Plan to the Maritime Security Strategy and the 2019 EU Action to Strengthen Rules-Based Multilateralism. 34 For instance, with Vietnam in the fields of framework participation agreement and military-to-military engagement; with Japan in the fields of non-proliferation, cyber security, military-to-military engagements and consultations on defence and security; with Korea in the fields of framework participation agreement, non-proliferation, cyber security, military-to-military engagements and consultations on defence and security; with Australia in the fields of framework participation agreement, consultations on defence and security and military-to-military engagements; with New Zealand in the fields of framework participation agreement and military-tomilitary engagement.

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References 7th Fleet Public Affairs (2021) ‘7th Fleet Destroyer conducts Freedom of Navigation Operation in South China Sea’, Commander, U.S. 7th Fleet, 5 February 2021, available at https://www.c7f.navy.mil/Media/News/Display/Article/2494240/7th-fleet-destroyer -conducts-freedom-of-navigation-operation-in-south-china-sea/#.YBz2a2BKNqs .twitter Bo, Z. (2019) ‘NATO’s Big Challenge Is not China, but How to Keep the Transatlantic Alliance Alive’, South China Morning Post, 18 April, available at https://www.scmp .com/comment/insight-opinion/article/3006680/natos-big-challenge-not-china-how -keep-transatlantic Buga, I. (2015) ‘Between Stability and Change in the Law of the Sea Convention: Subsequence Practice, Treaty Modification, and Regime Interaction’, in Donald R. Rothwell, D.R. Rothwell, A.G.O. Elferink, K.N. Scott and T. Stephens (eds.), The Oxford Handbook of The Law of the Sea, Oxford: Oxford University Press. Churchill, R.R. and Lowe, A.V. (1999) The Law of the Sea, 3th ed. Manchester University Press, Manchester. Congressional Research Service (2019) ‘U.S.-China Strategic Competition in South and Sea China Seas: Background and Issues for Congress’, Congressional Research Service, 20 December. Council of the EU (2019) ‘Joint Statement of the 22nd EU-ASEAN Ministerial Meeting’, Council of the EU, Press Release, 21 January, available at https://www.consilium .europa.eu/en/press/press-releases/2019/01/21/joint-statement-of-the-22nd-eu-asean -ministerial-meeting/pdf?fbclid=IwAR2vE1oE2IBVQSTe42GUBZ8tSpM_IVM41kq f3tsi5BVttkIenp5WnguXKgk Daiss, T. (2016) ‘South China Sea Disputes Off-Limits, Says NATO’, Forbes, 3 June, available at https://www.forbes.com/sites/timdaiss/2016/06/03/south-china-sea-disputes -off-limits-says-general/#59067456ddaf Dworkin, A. and Gowan, R. (2019) ‘Rescuing Multilateralism’, European Council on Foreign Relations, 25 June, available at ecfr.eu/publications/summary/rescuing_multil ateralism# EEAS (2016) ‘Vietnam and the EU’, European External Action Service, 16 May, available at https://eeas.europa.eu/delegations/vietnam_en/1897/Vietnam%20and%20the%20EU EEAS (2019e) ‘Enhancing Security Cooperation in and with Asia’, European External Action Service, available at https://eeas.europa.eu/sites/eeas/files/factsheet_eu_asia _security_october_2019.pdf EEAS (2019d) ‘EU-Vietnam Framework Participation Agreement’, European External Action Service, 17 October, available at https://eeas.europa.eu/headquarters/headquarters -homepage/68973/eu-vietnam-framework-participation-agreement_en EEAS (2019b) ‘European External Action Service, Enhancing Security Cooperation in and with Asia’, European External Action Service, available at https://eeas.europa.eu/sites/ eeas/files/factsheet_eu_asia_security_july_2019.pdf EEAS (2019c) ‘High Representative/ Vice-President Federica Mogherini Met with the Minister of National Defence of Viet Nam General Ngo Xuan Lich’, European External Action Service, 5 August, available at https://eeas.europa.eu/headquarters/headquarters -homepage/66182/high-representativevice-president-federica-mogherini-met-minister -national-defence-viet-nam_en EEAS (2019a) ‘Statement by the Spokesperson on Recent Developments in the South China Sea’, European External Action Service, 28 August, available at https://eeas

Multilateralism in Law of the Sea 105 .europa.eu/headquarters/headquarters-homepage/66749/statement-spokesperson -recent-developments-south-china-sea_en Fontaine, R. and Rapp-Hooper, M. (2016) ‘The China Syndrome’, The National Interest, 143, pp. 10–18. Gao, Z. (1991) ‘China and the LOS Convention’, Marine Policy, 15(3), pp. 199–209. Guilfoyle, D. (2015) ‘The High Seas’, in Donald R. Rothwell, D.R. Rothwell, A.G.O. Elferink, K.N. Scott and T. Stephens (eds.), The Oxford Handbook of The Law of the Sea, Oxford: Oxford University Press. Heydarian, R. (2019) ‘EU Should Expand Maritime Activity in Southeast Asia as China looms’, Nikkei Asian Review, 9 August, available at https://asia.nikkei.com/Opinion/ EU-should-expand-maritime-activity-in-Southeast-Asia-as-China-looms Mazarr, M.J., Priebe, M., Radin, A. and Cevallos, A.S. (2016) Understanding the Current International Order, RAND, Santa Monica, CA. Morrison, C.E. (2018) ‘Tradition, Trump, and the Future of US Participation in Multilateralism’, in C. Echle, P. Rueppel, M. Sarmah and L.H. Yeo (eds.), Multilateralism in a Changing World Order, Berlin: Konrad-Adenauer-Stiftung. Parpiani, K. (2021) ‘Biden on Indo-Pacific; Continuing the ‘American First’ Approach’, Observer Research Foundation, 29 January 2021, available at https://www.orfonline .org/expert-speak/biden-on-indo-pacific-continuing-the-america-first-approach/ Pothier, F. (2019) ‘How Should NATO Respond to China’s Growing Power?’, IISS, 12 September, available at https://www.iiss.org/blogs/analysis/2019/09/nato-respond -china-power Reuters (2021), ‘US Hails German Warship Plan to Sail South China Sea’, Reuters, 04 March 2021, available at https://www.voanews.com/east-asia-pacific/us-hails -german-warship-plan-sail-south-china-sea Schreer, B. (2012) ‘Beyond Afghanistan NATO’s Global Partnerships in the AsiaPacific’,NATO Research Paper, 75, pp. 1–6. Stang, G. (2016) ‘The EU on the Multilateral Stage: Building a Global Energy and Climate Community’, in B. Ujvari (ed.), The EU Global Strategy: Going Beyond Effective Multilateralsim?, European Policy Centre, Brussels. Tonnesson, S. (2014) ‘Could China and Vietnam Resolve the Conflicts in the South China Sea?’, in Y-H Song and K. Zou (eds.), Major Law and Policy Issues in the South China Sea, London: Ashgate. Treves, T. (2015) ‘Historical Development of the Law of the Sea’, in D.R. Rothwell, A.G.O. Elferink, K.N. Scott and T. Stephens (eds.), The Oxford Handbook of The Law of the Sea, Oxford: Oxford University Press. Ujivari, B. (2016) ‘The EU Global Strategy: From Effective Multilateralism to Global Governance that Works?’, Security Policy Brief, 76(July), pp. 1–4. US Department of State (2021), ‘Secretary Blinke’s Call with Philippine Secretary of Foreign Affairs Locsin’, US Department of State, 27 January 2021, available at https:// www.state.gov/secretary-blinkens-call-with-philippine-secretary-of-foreign-affairs -locsin/ Valencia, M.J. (2019) ‘Might China Withdraw from the UN Law of the Sea Treaty?’, The Diplomat, 3 May, available at https://thediplomat.com/2019/05/might-china-withdraw -from-the-un-law-of-the-sea-treaty/ Zhen, L. (2018) ‘France, Britain to Sail Warships on Contested South China Sea to Challenge Beijing’, South China Morning Post, 4 June, available at https://www.scmp .com/news/china/diplomacy-defence/article/2149062/france-britain-sail-warships -contested-south-china-sea

Part 2

Multilateral Structures for Economic, Social and Environmental Cooperation

6

Apocalypse Now The WTO Dispute Settlement System in the Times of Trump1 Lukasz Gruszczynski

Introduction As famously stated by Pascal Lamy, the dispute settlement system (DSS) should be seen as the real crown jewel of the World Trade Organization (WTO), an organisation that still remains a main forum for the administration of international trade relations. Its mandatory character, comparative efficiency, impartiality and judicial quality, combined with its unique system of institutionalised trade sanctions, have allowed for relatively smooth functioning of international trade for the last decades. This system, however, has come under growing pressure over the last years. The most serious challenge was posed by a decision of the former United States (US) administration to block the appointment of new members of the Appellate Body (AB), the highest quasi-judicial organ of the WTO, eventually leading to its complete paralysis. In this context, many commentators have asked whether, without an appellate review, the WTO DSS or the organisation as a whole can survive. The objective of this chapter is to look more closely at the crisis of the WTO DSS. In particular, the chapter intends to examine the reasons underlying the US decision and evaluate the reactions of other WTO members. The subsequent discussion is therefore organised in the following way. The first part briefly describes the shift in the American trade policy under the Trump administration. Against this background, the second section examines the dynamics of the crisis that unfolded in the WTO with respect to the DSS, while the third section tries to uncover the motives that underlie the strategy adopted by the US. The fourth section concentrates on various solutions that have been proposed/implemented in order to save/revive the AB or the WTO DSS more generally. The last section assesses the current state of affairs and looks into the near future, connecting at the same time the discussion with the main theme of the book.

Trump and the New American Trade Policy International trade played an important role during the 2016 US presidential election campaign (Gruszczynski & Lawrence 2018, pp. 26–29). The topic was first picked up by Donald Trump and was gradually taken up by the other candidates from DOI: 10.4324/9781003167358-9

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both the Republican and Democratic sides (Noland et al. 2016). Trump criticised the existing international trade system, describing it as unjust and one-sided. He frequently highlighted the lack of reciprocity, manifested in the unequal access to the “open” American market in comparison with “closed” foreign ones (e.g. Politico 2016). The US trade deficit was a central part of his story (The New York Times 2016). According to Trump, such deficit was responsible for job losses and wage suppressions that particularly affected the American working and middle class (Politico 2016, see also Stiglitz 2019). This situation was made possible by the previous administrations, which had negotiated unfair trade deals – both of a bilateral and multilateral character. As a consequence, other countries were able to take advantage of the US by subsidising their exports, manipulating their currencies, stealing the intellectual property of American companies or cheating in many other ways. In this context, he identified the North American Free Trade Agreement (NAFTA) and the WTO as particularly damaging. In his own words “NAFTA was the worst trade deal in history, and China’s entrance into the World Trade Organization has enabled the greatest jobs theft in history” (Politico 2016). The solution proposed by Trump was simple and straightforward. The US had to review all its trade commitments and renegotiate those agreements that did not sufficiently secure the (rather unspecified) American interests, in order to, as stated by Trump, get “fair, bilateral trade deals that bring jobs and industry back onto American shores” (Deutsche Welle 2016). If renegotiations failed, a particular treaty was to be terminated. Trump also considered some of the ongoing liberalising initiatives (e.g. the Trans-Pacific Partnership, TPP) so defective that they had to be simply discontinued. Renegotiation processes were supposed to be combined with the introduction of unilateral trade actions in the form of additional tariffs (as high as 45%) for imports from certain countries. American companies offshoring their activities were to face some financial sanctions as well. The group of alleged “cheaters” evolved over time, but it always included China, the country which was accused of various unfair trade and economic practices. To the surprise of many, Trump, as a president, began to implement his campaign promises. In one of his first steps, he withdrew the US from the TPP process and froze the negotiations with the European Union (EU) over another mega trade deal – the Transatlantic Trade and Investment Partnership. Shortly thereafter, Trump started renegotiation of the 2012 United States-Korea Free Trade Agreement (KORUS) and NAFTA. In both cases, Trump threatened to withdraw from the respective agreement if the negotiations did not succeed. The first deal was concluded relatively quickly in March 2018, and the formal agreement was signed six months later. Surprisingly, the changes were minor. The new KORUS has re-established some of the trade restrictions between the parties and slightly expanded market access for some American producers (e.g. automakers) but by no means was it revolutionary (Schott & Jung 2018). The NAFTA renegotiations proved to be more difficult. The whole process was full of drama and unexpected shifts. Eventually, the new agreement (United States–Mexico–Canada Agreement or USMCA)2 was signed in November 2018, and entered into force on 1 July 2020. The new pact liberalises some areas, while restricting others. For example,

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it improves the rules on digital trade, but at the same time has stricter disciplines for determination of the origin of goods in the automotive and textile sectors. Overall, however, it does not change the core of the NAFTA obligations and its economic impact seems to be limited (Quartz 2019, Burfisher et al. 2019). This is again surprising, particularly if one recalls the earlier characterisation of NAFTA by Donald Trump as “the single worst trade deal ever approved in this country” or “one of the worst things that ever happened to the manufacturing industry” (Calmes 2016). President Trump also took a more assertive stance towards China. However, instead of using available multilateral mechanisms or seeking the support of US allies, he opted for a unilateral approach. At the beginning of 2018, Trump imposed new tariffs on several products, including solar panels, steel and aluminium (while of a general character all these restrictions significantly affected exports from China). This was followed by the imposition of series of additional tariffs ranging between 10% and 25% on various other Chinese goods. Formally speaking, all these restrictions were justified by security and safeguarding reasons or taken as rebalancing measures. Of course, China retaliated in response to the US actions, imposing its own tariffs, cancelling the purchase by state-owned enterprises of American agricultural products and accelerating the decrease in its holdings of US treasury bonds. At the same time, it initiated a number of proceedings against the US at the WTO, claiming that the various US actions violated the rules of the organisation (Cavallo et al. 2019, Chong & Li 2019; for a good timeline see China Briefing 2019). Although in January 2020, the two countries reached a preliminary agreement (the so-called Phase One Agreement), tensions have continued to persist.

The WTO DSS under Pressure Donald Trump was always very critical of the WTO. He pictured the organisation as a Trojan horse that allowed China (as well as other countries) to take advantage of the US. In his own words, the WTO “was set up for the benefit of everybody but [the US]” (RCP 2017). This was possible not only because of the poor formulation of certain (unspecified) substantive rules, but also due to its institutional make-up. In this context, for example, Trump falsely claimed that the US tends to lose almost all its disputes because it does not have enough judges in the organisation (RCP 2017) (for a strong critique see Ikenson 2017).3 It is therefore not surprising that he threatened to pull the country out of the WTO if insufficient progress was made in reforming it, or if his domestic trade actions were legally contested (Micklethwait et al. 2018). While this did not happen, Trump managed to shake the foundations of the whole system by implementing the unilateral trade policy and undermining the institutional structures of the organisation.4 Probably the most troublesome aspect of this strategy was the decision, taken already in the summer 2017, to block the appointments of new AB members. The AB is a permanent body that hears appeals in the WTO DSS, thus allowing the organisation to perform one of its core functions, at the same time ensuring

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the consistency of the case law and predictability of the WTO legal regime. As explained in the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU),5 the DSS is: a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law.6 The DSS is composed of a two-tier mechanism (i.e. ad hoc panels and the permanent AB) and supported by a sophisticated enforcement system. While the WTO law-making process has been generally seen as a failure, the DSS has been widely perceived as a huge success. Since WTO panels (unlike many other international courts) enjoy compulsory and exclusive jurisdiction over disputes that involve the application and interpretation of WTO provisions, the initiation of the DSS mechanism is easy. As a consequence, the system has been used by WTO members frequently – overall more than 607 disputes have been initiated, which eventually led to 277 panel reports and 174 AB reports.7 Although the WTO DSS is time consuming and proceedings frequently take longer than provided for in the relevant rules, the compliance rate has been very high. The AB consists of seven members, who decide appeals from panel reports, sitting in three-person divisions. Their term of office is four years, with a possible one-time reappointment. They need to be persons of recognised authority in the field and are appointed in a way that guarantees a broad representation of membership in the WTO (although there is an informal practice of having one member each from the US, the EU and China).8 The re-appointment procedure starts with a consensual decision of the Dispute Settlement Body (DSB), being a special session of the General Council that meets in order to deal with trade disputes between members of the organisation. It is this consensus rule that allows the US to block the initiation of the process. Currently all seven seats remain unfilled. The terms of AB members Ricardo Ramirez-Hernandez, Peter Van den Bossche and Shree Baboo Chekitan Servansing ended in June 2017, December 2017 and September 2018 respectively, while Kim Hyun-chong resigned in July 2017 in order to take up the position of the Minister of Commerce of South Korea. In December 2019 the term of office of two additional members – Ujal Singh Bhatia and Thomas R. Grant – expired, while the last member who left the AB was Hong Zhao from China (30 November 2020). The whole situation first led to delays in the consideration of appeals and culminated in the complete paralysis of the appellate system as it is not possible anymore to form a three-person division (the current docket of the Appellate Body includes 24 pending appeals).9 Obviously, there is currently a strong incentive for those parties that are disappointed with an outcome of a panel proceeding to lodge an appeal into the void. In practice, we have returned to the old GATT practice, under which each party to a dispute had a veto right (i.e. now blocking the adoption

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of a panel report by simply filing an appeal). One consequence of this situation is that WTO members may decide more frequently to use unilateral retaliations as the only effective means to deal with trade restrictions of their trading partners. It also has to be stressed that the crisis is unprecedented in the history of the WTO. Although in the past the US employed a similar strategy (e.g. its 2011 decision to block the reappointment of Jennifer Hillman as an AB member and a similar decision in 2016 concerning the reappointment of Seung Wha Chang (Elsing et al. 2016)), this was done on a much smaller scale – i.e. an appointment of a specific AB member was seen as problematic, but the work of the body as a whole was not jeopardised. Moreover, in both the above-cited cases it was possible to relatively quickly find another candidate that was acceptable to the US. Several attempts have been made to break the impasse. Probably the most serious efforts have been undertaken by the EU which, initially on its own initiative, and later on together with China, India and some other like-minded WTO members, proposed some specific reforms of the WTO DSS that, at least in its opinion, addressed some of the US’s concerns (European Commission 2018, WTO 2018a, b). These proposals envisage certain changes to the DSU, such as “codifying” Rule 15 of the Working Procedures for Appellate Review (Working Procedures), increasing the number of AB members to deal more efficiently with the work flow or prolonging their term of office but eliminating the re-appointment option. The US rejected all those proposals, noting that such reforms “would make the Appellate Body even less accountable, and more susceptible to overreaching.”10 In another initiative, the WTO General Council decided in January 2019 to appoint David Walker as a facilitator who could assist the members in finding a solution. A number of informal meetings between the interested members have been organised as well. This, however, did not lead to any breakthroughs.11 The US Ambassador to the WTO noted, for example, at one of the meetings of the General Council that “given that some Members appear prepared to condone continued rule-breaking by the Appellate Body, it is not surprising that the Facilitator’s Report reflects only limited progress” (US Mission Geneva 2019c).

So What Is This All about? The motives behind the US decision to block the appointments of AB members are not entirely clear. Initially, the US seemed to be only concerned with some purported procedural irregularities in the WTO dispute settlement process. In this context, the US criticised the practice that allows former AB members to complete appeals after the expiry of their term of office, without seeking prior approval from the DSB (US Mission Geneva 2017). Although such a situation is not envisaged by the DSU, it is permitted under Rule 15 of the Working Procedures, a document that was adopted by the AB itself with little involvement from the WTO members (as would be required in the case of any revision of the DSU). While the US did apparently not reject this practice as a matter of principle, it seemed to believe that such a decision had to be taken by the DSB itself. As far as other procedural

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irregularities are concerned, the US has also complained about the practice of extending the time limit for consideration of appeals (i.e. 90 days as provided by Art. 17.5 of the DSU). Currently it is the AB that takes such a decision, while the US believes that it should always seek authorisation from the DSB (US Mission Geneva 2018a). Later, however, the US administration added a number of systemic issues relating to the overall functioning of the AB. Probably the most important item on this list concerns the alleged judicial activism of the world trade court. According to the US, on numerous occasions the AB has adopted expansive interpretations that have gone beyond the explicit language of a relevant treaty (particularly in cases concerning trade remedies and technical barriers to trade). This, in turn, has led to the modification of rights and obligations originally agreed upon among the members, in violation, for example, of Art. 3.2 of the DSU (USTR 2018, pp. 22–28; US Mission Geneva 2018a). Secondly, the US also criticised the scope of the review conducted by the AB, which as per Art. 17.6 of the DSU needs to be limited to issues of law and legal interpretations developed by a panel. The US argued that in practice the AB has frequently overstepped its limited mandate and reviewed (and sometimes reversed) a panel’s findings of fact. According to the US, the AB has also misunderstood its task when reviewing panels’ findings on the meaning of members’ municipal law. As a question of fact, they should not have been considered in the appeal (US Mission Geneva 2018c). Third, the US accused the AB of issuing what it has labelled as “advisory opinions” – abstract findings that are not necessary to resolve a dispute. In this context, the US has indicated that the tasks of both panels and the AB were narrowly defined and only allowed for making those findings that could assist the DSB in preparing recommendations on how to bring a measure into conformity with the relevant WTO agreement (US Mission Geneva 2018d, pp. 10–26). Fourth, the US appeared to be concerned with the precedential character of the panels’ and AB’s reports. In particular, it argued that the AB has regularly attempted to modify, without any mandate to do so, the nature of its reports by assigning them precedential, rather than merely persuasive, value. According to the US, a striking example of such an approach can be found in the recent AB report in US – Stainless Steel (Mexico),12 in which the AB required the panel to follow its previous case law unless there were “cogent reasons” not to do so (US Mission Geneva 2018e, pp. 9–35). Last but not least, the US also criticised (quite surprisingly when one considers its other complaints) the lack of transparency in the WTO DSS. In particular, the US was unsatisfied with the level of openness of the WTO proceedings (e.g. closed panel meetings or confidential party submissions) (US Mission Geneva 2019b, pp. 12–28). Due to space limitations, this chapter does not engage with the merits of the criticisms advanced by the US. These issues have already been extensively addressed in the literature by a number of leading experts in the field (e.g. Shaffer et al. 2017, Petersmann 2019, Zhou & Gao 2019, Ridi 2019). It is enough to say here that so far the US has remained very vague about the directions of the changes it requests. It has listed alleged procedural and systemic deficiencies, but

Apocalypse Now 115 avoided making any concrete proposals as to how they should be remedied (an amendment to the DSU or to the Working Procedures?) or by whom (the DSB? AB?). The following statement from the former US Ambassador to the WTO well captures the ambiguity of the US position: Rather than seeking to make revisions to the text of the Dispute Settlement Understanding to permit what is now prohibited, the United States believes it is necessary for Members to engage in a deeper discussion of the concerns raised, to consider why the Appellate Body has felt free to depart from what WTO Members agreed to, and to discuss how best to ensure that the system adheres to WTO rules as written. Without these understandings, there is no reason to believe that simply adopting new or additional language, in whatever form, will be effective in addressing the concerns that the United States and other Members have raised [emphasis added]. (US Mission Geneva 2019a, p. 14) The above suggests that the Trump administration apparently did not have any concrete reform plans for the WTO DSS. This is at least surprising, particularly if one recognises that the crisis has already been going on for some time, and most of the concerns were purportedly raised in the past by previous US administrations. What is also indicative is that little progress was made over that period. As discussed above, the US was quite rigid about its position, with little appetite for making any kinds of concessions to other WTO members (e.g. “As we have explained in prior meetings, we are not in a position to support the proposed decision [concerning the start of the appointment process]. The systemic concerns that we have identified remain unaddressed”) (US Mission Geneva 2019d). The structure of the US criticism is also telling. The US started with purely procedural issues and only later expanded its criticism to include systemic aspects. Even those concerns were explained incrementally rather than on any one single occasion (despite the fact that they remain closely connected). While this could have been simply a negotiation strategy, one may also see it as a way to prolong the whole process (note that some of the systemic concerns were only articulated by the US two years after its initial objection to the initiation of the appointment process). Taken together, all of these suppositions appear to indicate that the real reasons behind the US decisions were different from those that were offered by the country during the DSB meetings. It seems that the Trump administration aimed from the beginning at freezing the WTO DSS as the mechanism that could have potentially restricted the US’s freedom in implementing its unilateral trade policy. Trump apparently believed that a unilateral approach was more effective in achieving his goals than the WTO DSS. The US, rather than subordinating its policies to international trade rules (which according to Trump were poorly negotiated), was simply able to rely on its economic and political strength. For example, the president’s 2017 Trade Policy Agenda already announced that “[i]t is time for a more aggressive approach. The Trump Administration will use all possible leverage

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to encourage other countries to give US producers fair, reciprocal access to their markets” (USTR 2017). The WTO DSS could have constituted a legal obstacle to the successful implementation of this strategy. Note that China as well as other affected countries have launched a number of disputes against many of the trade measures introduced by the Trump administration, and there seems to be a common perception among the experts that their chances of success are high (Lee 2019, Petersmann 2018, Buser 2018), as already proven in a number of cases that have been decided so far. While in terms of economic consequences losing some of these disputes might change very little (most of the US’s trading partners have already taken rebalancing actions), this fact could have some reputational costs by picturing the US as a clear violator (rather than a victim) of the international trade rules. The Trump administration might have also believed that the WTO was generally incapable of dealing with the (again alleged) systemic problems posed by the trade and economic policies implemented by China, particularly those which relate to indirect forms of subsidisation of its production, technology transfer, or currency manipulation. The comment made by the former US Trade Representative Robert Lighthizer at the CSIS meeting seems to indicate that such a perception was not alien in the White House. He particularly noted that: There is one challenge on the current scene that is substantially more difficult than those faced in the past, and that is China … Unfortunately, the World Trade Organization is not equipped to deal with this problem. The WTO and its predecessor, the General Agreement on Tariffs and Trade, were not designed to successfully manage mercantilism on this scale. We must find other ways to defend our companies, workers, farmers, and indeed our economic system. (CSIS 2017) The same message was often repeated by the other high US officials. For example, Dennis Shea, the former US ambassador to the WTO, during one of the WTO Trade Policy Review meetings added – after identifying various problems with China’s participation in the organisation – that “it is clear … that the WTO currently does not offer all of the tools necessary to remedy [the situation]” (US Mission Geneva 2018b). If this is true, then blocking the WTO DSS simply shielded the US from the challenges instituted against its unilateral actions (which were, in Trump’s opinion, effective means to discipline the conduct of the Chinese government).

Responding to the Crisis Scholars and commentators have proposed various solutions for saving either the AB in particular, or the WTO DSS more generally. Of course, the most desirable solution was to reach a compromise that would address the American concerns and at the same time be acceptable to the other WTO members. Considering the track record of Trump’s trade negotiations (e.g. the new KORUS or USMCA), such an option, at least on its face, appeared feasible. However, the conduct of

Apocalypse Now 117 the US between 2017 and 2020 showed that the WTO DSS was a different case. Unlike in the KORUS and USMCA negotiations,13 the US was not putting any pressure on other WTO members to find a solution to the appointment crisis. Apparently, the Trump administration believed that the freeze of the appellate level had its advantages. As noted above, it gave political freedom to Trump in the area of international trade (with unilateral trade sanctions as one of the items on the menu) and prevented potential unfavourable “judgments.” At the same time, such a strategy could have gone unchecked, without any involvement of the US Congress (which will be not a case for the decision to withdraw from the organisation). So what other alternative solutions were contemplated? One option was to simply override the US veto and complete the appointment process (Kuijper 2017). Although such a course of action would go against the longstanding WTO tradition of reaching decisions by consensus, legally speaking this might be possible. The DSU requires, with very limited exceptions, consensus for any decision of the DSB. At the same time, majority voting is envisaged by Art. IX:1 of the WTO Agreement if consensus is not possible, while Art. XVI:3 gives priority to the provisions of the WTO Agreement in the event of a conflict with any of the multilateral trade agreements annexed to it. If the relationship between relevant provisions of the DSU and WTO Agreement is conceptualised in terms of conflict, this would mean that majority voting is an available option. Some experts have also suggested resort to the WTO arbitration system as a temporary alternative to the DSS (Andresen et al. 2017, Deepak 2019). Such a mechanism is envisaged by Art. 25 of the DSU and requires mutual agreement of the parties to the dispute. Although rarely used in the past, it looks like a potentially useful emergency tool that could be relied upon until the full DSS is brought back to life (in practice it either replaces the entire DSS process or just its appellate stage). What is important is the fact that arbitration awards can be enforced through the standard WTO enforcement mechanism (see Art. 25.4 DSU). While the DSU does not address this issue, it seems that this option is available not only for specific disputes, but can be used more generally and cover all future disputes that arise between like-minded WTO members (Pohl 2018). In fact, such a solution has been already implemented by the EU and a number of other countries. After concluding bilateral agreements with Canada and Norway,14 the EU successfully launched the Multiparty Interim Appeal Arbitration mechanism (MPIA).15 Although such appeals are only available to the parties to the agreement (which now also includes China), other WTO members may join MPIA at any time (for further details see Lester 2020). The agreement envisages, among the other things, that all appeals in the disputes between the parties shall be decided, pursuant to Art. 25 of the DSU, by three arbitrators appointed by the WTO’s Director-General from a pool of ten standing appeal arbitrators composed by the participating members. The agreement applies as long as the AB is unable to hear appeals. In April 2022 the first appeal under Art. 25 of the DSU was initiated by Turkey (in the Turkey – Pharmaceutical Products dispute, DS583). This was, however, done outside the MPIA, on the basis on the bilateral agreement with the EU with the agreed procedures similar to those in the MPIA.

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Other options proposed by experts included, for example, agreeing on ex ante procedural agreements (either of a bilateral or plurilateral character) that would preclude appeals from panel reports (Salles 2017, WTO 2019);16 adopting a temporary waiver on appellate reviews by the Ministerial Conference (with a three-quarters majority as a possibility (Paysova et al. 2018, p. 10)); including a provision in the Working Procedures that would envisage automatic completion of all appeals (Charnovitz 2017, note that this option is not available any more); or establishing a new dispute settlement mechanism among like-minded WTO members (without the US) that would, to the extent possible, replicate the current DSS (a coalition labelled “The Real Friends of Dispute Settlement”) (Kuijper 2017). All these options had their strengths and weaknesses. They all aimed at reviving the WTO DSS or creating its substitute. Some required a broad level of support from the members, while others only called for coordinated action by members and certain high-level WTO officials. At the same time, it seems that the legality of some proposed options could have been contested. For example, one can argue that the DSU actually does not permit majority voting. In particular, footnote no. 3 to Art. IX of the WTO Agreement, which provides that “decisions by the General Council when convened as the Dispute Settlement Body shall be taken only in accordance with the provisions of paragraph 4 of Article 2 of the Dispute Settlement Understanding,” may be read as lex specialis, which precludes voting and privileges the general DSU consensus rule.17 Leaving aside the legal aspects, it was also clear that the various options had different political costs. Arguably, WTO members were aware that any solution that would result in overcoming the veto of the US or stretching existing rules (e.g. automatic completion of all appeals or temporary waiver by the Ministerial Conference) could further alienate this country, prompting it to withdraw altogether from the organisation. Considering the importance of the US for international trade relations, such a move was highly undesirable. Looking from this perspective, less risky were those strategies that envisage some kind of continuation of the DSS operation among the countries that are interested in maintaining the rule-based international system. In particular, countries could simply refrain from appealing the panels’ reports or create some substitute for the appellate review (Pauwelyn 2019). As explained above, the latter solution has been eventually implemented by a number of like-minded members.

Conclusions: The Current State of Play and a Look into the Future For the reasons discussed above, the appointment deadlock was not broken during President Trump’s term of office. The aim of the US administration from the beginning was arguably to freeze the WTO DSS as a mechanism that could have potentially restricted its freedom to implement its unilateral trade policy; a desire that could not have been satisfied through any specific reforms of the DSS. On the other hand, an alternative appellate mechanism has successfully been created. It

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evolved from the bilateral agreements between the EU and Canada and Norway into a plurilateral arrangement among like-minded countries. Since this solution closely resembles the existing appellate review procedure, in practice it may compensate for the current deadlock if a sufficient number of active members embrace it. Moreover, the WTO panel system has worked as usual so far (in fact it has been busier than ever), while some appeals had been dealt with on the basis of Rule 15 of the Working Procedures (until it was possible). All of these clearly show the trust of the members in the rule-based multilateral system established by the WTO, an indispensable element of which is its DSS. This is obviously a positive sign, one which suggests that a return to pre-crisis normality is possible in the future. However, this bright picture needs to be confronted with four less optimistic developments. First, although the MPIA mechanism has been set up, so far it has not been used in practice. None of the disputes18 where the parties agreed on the procedures for arbitration under Article 25 DSU19 have led to the initiation of an appellate proceeding (although for reasons unrelated to the mechanism itself). Second, we have not seen WTO members concluding ex ante procedural agreements that would prohibit them from appealing panel reports (as suggested by Pauwelyn 2019, pp. 14–15). Third, while in some cases the countries indeed refrain from appealing the panels’ reports (without any underlying procedural agreement),20 the general trend has been the opposite, with many members lodging appeals “into the void” (altogether there are 24 pending appeals that cannot be completed). Not surprisingly the US, with its six appeals, has been the most frequent adherent of this path (with the last appeal filed on 19 March 2021).21 However other members have taken this route as well. India has lodged five appeals, the EU three, Thailand two, while China, Morocco, South Korea, Saudi Arabia, Indonesia, Pakistan, Canada and Panama have lodged one each. This group is not only geographically diverse, but also includes the parties to the MPIA. The most notable example is the EU, which has been one of the most vocal defenders of the AB. One could expect that for the EU, as a multilateral organisation par excellence, this matter is of existential importance, as on the more general level it helps to justify its own existence. It should also be noted that the EU has always been a very active user of the system, clearly preferring a rules-based dispute settlement mechanism over unilateral approaches (a stance which presumably reflects its internal structure and the values that underlie the Union). Nevertheless, it also appears that short-term political calculations have prevailed over its long-term interests. All of these phenomena indicate that the specific factors identified by Pauwelyn as potentially constraining WTO members from making appeals “into the void” (i.e. self-interest, the emulation problem, reputational costs and the risk of retaliation) have not been as strong as one could have anticipated (for details see Pauwelyn 2019, p. 10). The last and probably the most significant development concerns the evolution (or more precisely lack thereof) of the position of the American administration on the role of the WTO and its dispute settlement process in managing international trade tensions. The expectations have been high, and there has been at least some basis for them. Joe Biden – as a presidential candidate – consistently highlighted

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the importance of multilateralism as the way to administer international affairs. He also promised a return of the US to various multilateral structures. As one of his first moves, he reinstated the US into the Paris Climate Agreement, cancelled Trump’s withdrawal from the World Health Organization (WHO) and restored funding for the organisation. It is also notable that the new administration cleared the way for Nigeria’s Ngozi Okonjo-Iweala to be WTO Director-General. On the other hand (and to the surprise of many observers), the US ambassador has refused to restart the selection process for the appointment of AB members, pointing out the systemic concerns that have been discussed above. While one may expect that the future approach of the US will be more constructive, it also seems that the new administration takes the advantage of the current situation and expects deep reforms of the WTO DSS before it can proceed with the AB appointments. The position of China with respect to the current crisis of the WTO appellate mechanism is equally ambiguous. On one hand, China may see it as an opportunity to strengthen its geopolitical position by presenting itself as a committed defender of international free trade and one of the new leaders in this area. China was also the major and intended victim of Trump’s trade policy. While it has responded to the American restrictions by simply retaliating, the WTO DSS still appears to be an important avenue for the defence of its trade interests (as evidenced by the number of WTO disputes formally launched by China against the US), or at least as an element of a broader narrative offered to the rest of the world. China may also see the current situation as a good opportunity to strengthen its position within the WTO (in a similar way as it has done in the WHO). The various statements issued before and after 10 December 2019 by high-level Chinese officials seem to point in this direction. For example, the Chinese Ministry of Commerce spokesman Gao Feng stressed that China would “strive to maintain the operation of the WTO dispute settlement mechanism and defend the rules-based multilateral trading system” (Bermingham 2019). The accession of China to the MPIA may therefore be seen as a reflection of this strategy. On the other hand, China is sufficiently large to manage the conflict with the US through unilateral means. Contrary to the EU (at least at the declaratory level), it views the WTO in pragmatic rather than principled terms. Consequently, China may consider the current crisis as a chance to reshape the organisation of its foreign trade and perhaps promote its interests through other (including some new) initiatives that remain under its full control (e.g. the Belt and Road Initiative). Note also in this context that the tension between certain WTO requirements and China’s economic policy is very real, while other rules of the organisation appear to be too weak to assist the Chinese government in achieving some of its strategic objectives (e.g. recognition of China as a market economy). So while China has so far supported various EU initiatives, its overall engagement remains well below its real capabilities to influence the global developments in this regard. This may suggest that the country is still considering its available options and has not made any final decision yet as to the direction of its future trade policy. Having said all of the above, it is also clear that the key to reviving the AB appointment problem lies in Washington DC. While the early actions of the Biden

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administration do not indicate that the solution is anywhere near in the sight, it is still too early to draw any general conclusions on the stance of the US vis-à-vis the current multilateral trade architecture. However, considering the new American approach to multilateralism in general, one may remain moderately optimistic. So maybe at the end of the day, it will turn out that the apocalypse can be called off. At least for some time…

Notes 1 This research was financed by the National Science Centre (Poland) pursuant to grant number UMO-2018/31/B/HS5/03556. 2 See the text of the agreement, available at https://ustr.gov/trade-agreements/free-trade -agreements/united-states-mexico-canada-agreement/agreement-between 3 Trump forgot to add the US has prevailed in 91% of the cases where it acted as a complainant. 4 But note that the Trump administration has continued to file complaints in the WTO against other members (USTR 2019, p. 147). 5 Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 UNTS 401. 6 Art. 3.2 of the DSU. 7 See ‘Dispute Settlement Activity – Some Figures’, available at https://www.wto.org/ english/tratop_e/dispu_e/dispustats_e.htm (as of 31 December 2021). 8 Art. 17.3 of the DSU. 9 See information on the official WTO website, available at https://www.wto.org/english /tratop_e/dispu_e/appellate_body_e.htm 10 General Council, Minutes of the Meeting Held in the Centre William Rappard on 12 December 2018, WT/GC/M/175, 20 February 2019, para. 6.171. 11 Informal Process on Matters Related to the Functioning of the Appellate Body – Report by the Facilitator H.E. Dr. David Walker (New Zealand), JOB/GC/222, 15 October 2019. 12 Appellate Body Report, United States – Final Anti-Dumping Measures on Stainless Steel from Mexico, WT/DS344/AB/R, adopted 20 May 2008, paras. 160 et seq. 13 Note that the quick conclusion of the new KORUS was probably influenced by the growing military tensions between the two Koreas and the involvement of the US in the region. In case of the USMCA, a failure of negotiations could mean termination of NAFTA (with all its economic and political consequences for the US). 14 Interim Appeal Arbitration Pursuant to Article 25 of the DSU: Agreement between the EU and Canada, 25 July 2019; Agreement between the EU and Norway, 21 October 2019. 15 WTO, Multi‐Party Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU. Addendum to Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, 30 April 2020, JOB/DSB/1/Add.12/, and the subsequent documents. 16 An agreement of this kind has already been concluded in the past. 17 See Julia Qin’s comment under Kuijper’s post (Kuijper 2017). Article 2.4 of the DSU specifically provides that “[w]here the rules and procedures of this Understanding provide for the DSB to take a decision, it shall do so by consensus.” 18 Canada – Measures Concerning Trade in Commercial Aircraft (Brazil), WT/DS522; Costa Rica – Measures Concerning the Importation of Fresh Avocados from Mexico (Mexico), WT/DS524; Canada – Measures Governing the Sale of Wine (European Union), WT/DS537 19 See, e.g. WTO, Canada – Measures Concerning Trade in Commercial Aircraft. Agreed Procedures for Arbitration under Article 25 of the DSU, WT/DS522/20, 3 June 2020.

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20 See, e.g. Panel Report, Australia – Anti-Dumping Measures on A4 Copy Paper, WT/ DS529/R, 4 December 2019. 21 Notification of Appeal by the United States in DS539: United States – Anti-Dumping and Countervailing Duties on Certain Products and the Use of Facts Available (WT/ DS539/9).

References Andresen, S., Friedbacher, T., Lau, C., Lockhart, N., Remy, J.Y. and Sandford, I. (2017) Using Arbitration under Article 25 of the DSU to Ensure the Availability of Appeals, CTEI Working Papers 2017-17. Bermingham F. (2019) ‘WTO: China Blames US as Appeal Court Comes to a Halt, Sparking New Fears for Global Trading System’, South China Morning Post, 11 December, available at https://www.scmp.com/economy/china-economy/article/3041490/china -blames-us-wtos-appeal-court-comes-halt-sparking-new Burfisher, M.E., Lambert, F. and Matheson, T. (2019) NAFTA to USMCA: What Is Gained? IMF Working Paper, March 2019. Buser, A. (2018) ‘Justiciability of Security Exceptions in the US Steel (and other) Disputes: Some Middle-Ground Options and the Requirements of Article XXI lit. b (i)-(iii)’, EJIL Talk!, 20 November, available at https://www.ejiltalk.org/justiciability-of-security -exceptions-in-the-us-steel-and-other-disputes-some-middle-ground-options-and-the -requirements-of-article-xxi-lit-b-i-iii/ Calmes, J. (2016) ‘Trump Scores Points on Trade in Debate, but Not So Much on Accuracy’, The New York Times, 28 September, available at https://www.nytimes.com /2016/09/28/us/politics/hillary-clinton-donald-trump-trade-tpp-nafta.html Cavallo, A., Cal, M. and Laski, A. (2019) ‘The U.S.–China Trade War’, Harvard Business School Case 719–034, February 2019, pp. 1–32. Charnovitz, S. (2017) ‘How to Save WTO Dispute Settlement from the Trump Administration’, International Economic Law and Policy Blog, 3 November, available at https://worldtradelaw.typepad.com/ielpblog/2017/11/how-to-save-wto -dispute-settlement-from-the-trump-administration.html China Briefing (2019) ‘The US-China Trade War: A Timeline’, China Briefing, 14 August, available at https://www.china-briefing.com/news/the-us-china-trade-war -a-timeline/ Chong, T.T.L. and Li, X. (2019) Understanding China-US Trade War: Causes, Economic Impact, and the Worst-Case Scenario, Lau Chor Tak Institute of Global Economics and Finance, Working Paper No. 71/2019. CSIS (2017) ‘U.S. Trade Policy Priorities: Robert Lighthizer, United States Trade Representative’, Center for Strategic and International Studies, 18 September, available at https://www.csis.org/analysis/us-trade-policy-priorities-robert-lighthizer-united-states -trade-representative Deepak, G. (2019) ‘WTO Dispute Settlement: The Road Ahead’, International Law and Politics, 51(3), pp. 981–997. Deutsche Welle (2016) ‘Trump Says He Will Withdraw US from TPP Trade Deal “on Day One”’, 22 November, available at https://www.dw.com/en/trump-says-he-will -withdraw-us-from-tpp-trade-deal-on-day-one/a-36474326 Elsing, M., Pollack, M. and Shaffer, G. (2016) ‘The U.S. Is Causing a Major Controversy in the World Trade Organization. Here’s What’s Happening’, The Washington Post, 6 June, available at https://wapo.st/2Nlb4Yy

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European Commission (2018) WTO-EU’s Proposals on WTO Modernisation, trade. dga2.f.1.(2018)3975169, Brussels, 5 July 2018. Gruszczynski, L. and Lawrence, J. (2018) ‘Trump, International Trade and Populism’, Netherland Yearbook of International Law, 19, pp. 19–44. Guiford, G. (2019) ‘The Net Impact of Trump’s New NAFTA Is Probably Nothing’, Quartz, 22 April, available at https://qz.com/1600240/the-net-impact-of-trumps-new -nafta-is-probably-nothing/ Hogan P. (2019) Speech by EU Trade Commissioner Phil Hogan at Dublin business event, 6 December, available at https://trade.ec.europa.eu/doclib/press/index.cfm?id =2088 Ikenson, D. (2017) ‘US Trade Laws and the Sovereignty Canard’, Forbes, 9 March, available at https://www.forbes.com/sites/danikenson/2017/03/09/u-s-trade-laws-and -the-sovereignty-canard/#2108648203f8 Kuijper, J. (2017) ‘What to Do About the US Attack on the Appellate Body?’, International Economic Law and Policy Blog, 15 November, available at https://worldtradelaw .typepad.com/ielpblog/2017/11/guest-post-from-pieter-jan-kuiper-professor-of -the-law-of-international-economic-organizations-at-the-faculty-of-law-of-th.html #comments Lee, Y.-S. (2019) ‘Are Retaliatory Trade Measures Justified under the WTO Agreement on Safeguards’, Journal of International Economic Law, 22(3), pp. 1–20. Lester S. (2020) ‘Can Interim Appeal Arbitration Preserve the WTO Dispute Settlement System’, Free Trade Bulletin, 77, pp. 1–6. Micklethwait, J., Talev, M. and Jacobs, J. (2018) ‘Trump Threatens to Pull U.S. Out of WTO If It Doesn’t “Shape Up”’, Bloomberg, 30 August, available at https://www .bloomberg.com/news/articles/2018-08-30/trump-says-he-will-pull-u-s-out-of-wto-if -they-don-t-shape-up Noland, M., Hufbauer, G.C., Robinson, S., and Moran T. (2016) Assessing Trade Agendas in the US Presidential Campaign, PIIE Briefing 16-6. Pauwelyn, J. (2019) ‘WTO Dispute Settlement Post 2019: What to Expect? What Choice to Make?’, Journal of International Economic Law, 22(3) pp. 297–321. Paysova, T., Hufbauer, G.C. and Schott, J.J. (2018) The Dispute Settlement Crisis in the World Trade Organization: Causes and Cures, PIIE Policy Briefing 18-5. Petersmann, E.-U. (2018) The 2018 American and Chinese Trade Wars Risk Undermining the World Trading System and Constitutional Democracies, EUI Working Paper LAW 2018/17. Petersmann, E.-U. (2019) ‘How Should WTO Members React to Their WTO Crisis’, World Trade Review, 18(3), pp. 503–525. Pohl, J.H. (2018) “A blueprint for a plurilateral WTO Arbitration Agreement under Article 25 of the Dispute Settlement Understanding”, in D. Prévost, I. Alexovicova and J.H. Pohl (eds.), Restoring Trust in Trade. Liber Amicorum in Honour of Peter Van den Bossche, London: Hart Publishing, pp. 139–155. Politico (2016) ‘Full Transcript: Donald Trump’s Jobs Plan Speech’, Politico, 28 June 2016, available at https://www.politico.com/story/2016/06/full-transcript-trump-job -plan-speech-224891 RCP (2017) ‘Interview with Donald Trump by Lou Dobbs’, Realclear Politics, 25 October, available at https://bit.ly/3caoYZY Ridi, N. (2019) ‘Mirages of an Intellectual Dreamland’? Ratio, Obiter, and the Textualization of International Precedent’, Journal of International Dispute Settlement, 10(3), pp. 361–395.

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Salles, L.E. (2017) ‘Bilateral Agreements as an Option to Living Through the WTO AB Crisis’, International Economic Law and Policy Blog, 23 November available at https:// worldtradelaw.typepad.com/ielpblog/2017/11/guest-post-on-bilateral-agreements-as -an-option-to-living-through-the-wto-ab-crisis.html Schott, J.J. and Jung, E. (2018) KORUS Amendments: Minor Adjustments Fixed What Trump Called “Horrible Trade Deal”, PIIE Policy Briefing 18-22. Shaffer, G., Elsing, M. and Pollack, M. (2017) ‘The Slow Killing of the World Trade Organization’, HuffPost, 17 November, available at https://www.huffpost.com/entry/ the-slow-killing-of-the-world-trade-organization_b_5a0ccd1de4b03fe7403f82df Stiglitz, J.E. (2019) ‘Trump’s Deficit Economy’, Project Syndicate, 9 August, available at https://www.project-syndicate.org/commentary/trump-trade-and-fiscal-deficits-by -joseph-e-stiglitz-2019-08 The New York Times (2016) ‘Transcript: Donald Trump on NATO, Turkey’s Coup Attempt and the World’, 21 July, available at https://www.nytimes.com/2016/07/22/us /politics/donald-trump-foreign-policy-interview.html US Mission Geneva (2017) Statements by the United States at the Meeting of the WTO Dispute Settlement Body, 31 August 2017. US Mission Geneva (2018a) Statement as delivered by Ambassador Dennis Shea Deputy U.S. Trade Representative and U.S. Permanent Representative to the WTO, 8 May 2018. US Mission Geneva (2018b) Statement as delivered by Ambassador Dennis C. Shea on Behalf of the United States of America, 11 July 2018. US Mission Geneva (2018c) Statements by the United States at the Meeting of the WTO Dispute Settlement Body, 27 August 2018. US Mission Geneva (2018d) Statements by the United States at the Meeting of the WTO Dispute Settlement Body, 29 October 2018. US Mission Geneva (2018e) Statements by the United States at the Meeting of the WTO Dispute Settlement Body, 18 December 2018. US Mission Geneva (2019a) Statements by the United States at the Meeting of the WTO Dispute Settlement Body, 25 February 2019. US Mission Geneva (2019b) Statements by the United States at the Meeting of the WTO Dispute Settlement Body, 22 July 2019. US Mission Geneva (2019c) Statements delivered by Ambassador Dennis: WTO General Council Meeting, 23 July 2019. US Mission Geneva (2019d) Statements by the United States at the Meeting of the WTO Dispute Settlement Body, 15 August 2019. USTR (2017) The President’s 2017 Trade Policy Agenda. Office of the US Trade Representative. USTR (2018) 2018 Trade Policy Agenda and 2017 Annual Report of the President of the United States on the Trade Agreements Program. Office of the US Trade Representative. USTR (2019) 2019 Trade Policy Agenda and 2018 Annual Report of the President of the United States on the Trade Agreements Program. Office of the US Trade Representative. WTO (2018a) Communication from the European Union, China, Canada, India, Norway, New Zealand, Switzerland, Australia, Republic of Korea, Iceland, Singapore and Mexico to the General Council, WT/GC/W/752, 26 November 2018. WTO (2018b) Communication from the European Union, China and India to the General Council, WT/GC/W/753, 26 November 2018.

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WTO (2019) Indonesia: Safeguard on Certain Iron or Steel Products, Understanding between Indonesia and Chinese Taipei Regarding Procedures under Articles 21 and 22 of the DSU, WT/DS490/13, 15 April 2019. Zhou, W. and Gao, H.S. (2019) ‘“Overreaching” or ‘Overreacting’? Reflections on the Judicial Function and Approaches of WTO Appellate Body’, Journal of World Trade, 53(6), pp. 951–978.

7

The Multilateral Trade and Monetary System in Peril Can China Replace the US at the IMF? Saliha Metinsoy

Introduction This chapter analyses the individual roles and interests of, as well as trilateral interactions between, China, the United States (US) and the European Union (EU) at the International Monetary Fund (IMF). The IMF occupies a central role overseeing the stability of the international monetary system with significant implications for international trade and wealth of the nations. It also engages in lending arrangements through which it exercises considerable (in)direct power over economic policy-making in borrowing countries. In its mandate of surveillance for the international monetary system, it conducts regular monitoring of economic policies of member states and issues advice (IMF 2019a). In this role, it commands significant “moral” power in defining and promoting “sound” economic policies (Clift 2018). Its privileged position in terms of affecting international and national economic policies also places it at the centre of interstate economic conflict and cooperation. This chapter specifically looks at the changing dynamics in the international system, rising unilateralism of the US under Trump’s administration and the responses and chosen roles for China and the EU at the IMF. It looks at bilateral responses and causes of tension as well as motives for cooperation among those actors. It also discusses the individual stances taken by those actors vis-à-vis the concept of “multilateralism.” The chapter argues that China lends increasing and enthusiastic support to the IMF, especially in the post-global financial crisis era. This is in complete opposition to its earlier, more critical stance towards the Fund emphasising sovereignty and country ownership of the IMF’s policies. Unlike China, the European Union seems to be growing increasingly sceptical of the Fund, contemplating the establishment of its own “lender of last resort” institution termed the “European Monetary Fund.” The US on the other hand is increasingly more critical of Chinese exchange rate policies, specifically the undervaluation of the renminbi (RMB), accusing China of “free-riding” on the good will of its trading partners. While the US has always enjoyed a privileged position at the Fund, holding the largest voting power, China seems to be the surprising new defender of the Fund, which faces mounting criticism in the aftermath of the global financial crisis. DOI: 10.4324/9781003167358-10

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The chapter also argues that the changed positions of the actors, mainly China’s and the EU’s, cannot be viewed merely as a response to Trump’s election in November 2016. They seem to alter their positions as a response to their bilateral relations with the Fund and in pursuit of their own self-defined international interests. In other words, while having an undeniable impact on the EU’s and China’s positions at the Fund, Trump’s election is not a clear cut-off point for the trilateral relations between China, the EU and the US at the Fund. The EU particularly has become more sceptical of the Fund after the sovereign debt crisis and its joint lending arrangements with the Fund since 2010. China seems to have become less critical of the Fund after the quota reform in the same year and later turned into an enthusiastic supporter, once its currency was included in the SDR basket1 in October 2016. Starting from the April 2017 International Monetary and Finance Committee (IMFC) meeting, after Trump resumed office, though, both China and the EU grant increasing support for multilateralism and rules-based trade and international monetary policy cooperation. Trump’s election interacts with trends already set in motion before his election. Before moving on to further analysis of the underlying reasons for these altered positions and preferences of the three actors (the EU, the US and China) as well as its consequences in terms of conflict and cooperation at the Fund, the chapter will firstly provide brief background information on the institutional structure and competencies of the IMF. It will also explain mounting criticism against the Fund’s policies and its role as the lender of last resort in the international system. In the second part, the chapter will discuss the trilateral relations between China, the EU and the US in the nexus of the IMF and international monetary cooperation. This part is based on systematic documentary analysis of the Executive Board Meeting minutes (the governing institution of the Fund), Article IV consultation discussions on individual countries at the Board (the main surveillance mechanism of the Fund) and the IMFC statements from the US, China, the European Commission (EC), the European Central Bank (ECB) and EU member states, namely, the United Kingdom (UK), Germany and France. All three fora (i.e. Executive Board meetings, Article IV consultation discussions and IMFC meetings) provide opportunities for participants to air their interests, reveal their preferences with respect to global economic issues and Fund activities and substantiate and legitimise their position vis-à-vis multilateral economic cooperation in general. I analyse the documents broadly in two periods: before the election of Trump as US president (i.e. until the end of 2016) and post-election (i.e. between the years 2017 and 2019). The main focus of the chapter is on delineating changing dynamics of conflict and cooperation in a multilateral (economic) institution, the Fund, after Trump’s election. The pre-election period helps to elucidate the underlying trends and changes in trilateral relations between the US, China and the EU in the nexus of the IMF. The final part of the chapter discusses how to analyse changes in these trilateral relations with regard to the functioning of the IMF.

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The International Monetary Fund: From Overseeing Exchange Rate Arrangements to the Centre of the International Financial System The IMF was established in 1944 in the Bretton Woods conference during the Second World War. The war effectively destroyed the European economies and required a comprehensive economic reconstruction plan. The specifics of the post-war economic design were agreed in the Bretton Woods conference by participating states under the hegemonic leadership of the US (Woods 2006). In the post-war international economic design, the Fund’s main task was to ensure international monetary stability by overseeing the exchange rate regimes of the member countries and providing short-term credit for correcting their balance of payments (Dreher 2003).2 This goal was mainly assigned due to the painful lessons of the interwar period, where countries engaged in competitive devaluation of their currencies in order to promote their exports and where protectionist policies prevailed (Helleiner 2017).3 In the post-war design, the Fund would prevent a race to the bottom in terms of currency devaluations and contribute to the prevention of the (re-)collapse of international economic cooperation. The Fund’s tasks and mission have evolved in time in parallel to the changes in the world economic system. Before 1970, the majority of IMF member states had a fixed exchange rate regime and monetary policy autonomy. This meant limited capital flows between countries.4 The IMF was tasked with providing a flexible line of credit (capital) in case of need and with maintaining exchange rate stability. In the 1970s, following the oil crisis, there was a transition towards floating exchange rate regimes, which enabled countries to keep monetary policy autonomy even with increasing international capital flows, thus allowing for a period of intensive financial globalisation. The need for overseeing exchange rate stability became redundant. In this period, the IMF grew in importance in its role as the “lender of last resort” in crisis situations and started engaging in conditional lending. Although conditionality was not among its original tasks (Dreher 2003), the Fund started to attach policy conditions to be fulfilled in exchange for its credits starting from the 1970s. In terms of relations between the Fund and the EU, this became particularly important when the Eurozone countries borrowed from the Fund in cooperation with the EC and ECB in the aftermath of the global financial crisis. In addition to conditionality, the Fund also engages in surveillance of the macroeconomic policies of its members. It holds regular Article IV consultations (referring to the relevant article of the IMF charter mandating regular monitoring of the macroeconomic policies of its member states). The surveillance activities are intended to promote “sound” economic policies as well as to prevent a potential spill-over of macroeconomic imbalances and/or crises to other member states. The staff report after the completion of the Article IV consultation with a particular country is discussed at the Executive Board. This is when most member countries voice their criticism as well as their policy preferences with respect to one another at the Fund. Such documents are useful in terms of delineating the dynamics of economic cooperation and conflict between countries such as

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between China and the US. Finally, the Fund offers technical advice and capacity building especially to the developing countries. The Fund’s governance is multi-layered and highly hierarchical. At the top of the organisation sits the Board of Governors. These are usually the governors of central banks or ministers of finance of member countries meeting twice a year (usually in April and October) to oversee the organisation. Day-to-day operations of the organisation are governed by the Executive Board (IMF 2019a). Currently there are 24 Executive Board members representing 189 countries. While countries such as the US, the United Kingdom (UK), Germany, France, Russia, China, Japan and Saudi Arabia each have one Executive Director at the Board, other countries form constituencies to represent their interests. In addition, 24 members of the Board of Governors also serve in the International Monetary and Financial Committee (IMFC) and advise the Fund in its overall activities (IMF 2019a). IMFC statements of country representatives such as the US and China or representatives of the European institutions draw the outline of their policy preferences and their positions with respect to global economic developments. Voting at the Fund reflects its intergovernmental organisational ethos. Voting rights of countries are determined on the basis of the size of their economy (in operational terms, by their GDP), their openness to the world economy and the volume of international reserves (IMF 2020). Bigger countries have greater voting power, often referred to as quotas. Quotas fulfil a dual role: they determine the size of the contribution of the country to the IMF resources as well as its voting power. The IMF functions on the basis of those contributions of member states in proportion to their economies. In turn, the organisation grants a share of decision-making power in line with the quota of the country, in addition to access to credit at the Fund in proportion to their quotas.5 Quotas are reviewed every five years based on the developments in the world economy and the changes in the economies of member states (Helleiner 2017). In terms of decision-making power, the US occupies a special position at the IMF. The country has the largest voting share at the Fund – 16.52% as opposed to a voting share of 6.09% for China and 5.32% for Germany.6 Moreover, the US enjoys a de facto power to veto institutional reform at the Fund, as any amendment to the charter of the Fund is possible only when “three-fifths of the members, having eighty-five percent of the total voting power”7 agree to those proposed changes. The US, holding more than 16% of the votes, can therefore block any suggested change. The US’s disproportionate influence at the Fund and the distribution of voting rights shape the trilateral relations between China, the EU and the US at the Fund to a certain extent. The next section discusses the evolution of the trilateral relations between those three actors.

Trilateral Relations between the US, the EU and China at the Fund: An Unexpected Change in China’s Role The IMF can be argued to fulfil three, complementary yet distinct, roles. On the one hand, it provides an intergovernmental forum, where economic interests are

130 Saliha Metinsoy aired and deliberated on with potential for cooperative solutions to global economic problems. On the other hand, as an intervening actor in the international monetary system, it conducts surveillance of member economies, and lends to the member states in urgent need of credit and shapes their policies. As a bureaucratic organisation, it can be argued to have some degree of independence from the interests of member states (Barnett & Finnemore 1999). Thirdly, it commands normative power: it has power to shape what is considered “sound” macroeconomic policy (Clift 2018). This section focuses on the first role, i.e. providing the necessary intergovernmental forum for voicing state interests. It particularly looks at the relative places and (economic) preferences of the US, China and the EU at the Fund. While the US is often referred to as the actor that has the biggest influence on the functioning and policies of the Fund, the section argues that China is emerging as a keen and enthusiastic supporter of the Fund, thus abandoning its former more critical stance. The EU on the other hand seems to be increasingly alienated by the practices and policy recommendations of the Fund especially during the Eurozone crisis started in 2009 and is contemplating establishing a “European Monetary Fund” as an alternative to the IMF. The section starts by discussing potential “conditional delegation” of the US to the Fund.

The United States at the Fund: “Behind-the-Scene” Principal? The United States, undoubtedly, occupies a special position at the Fund (Caraway et al. 2012; Copelovitch 2010; Dreher et al. 2015; Dreher and Jensen 2007; Stone 2008; Woods 2006). The country has shaped the charter and tasks of the Fund at its inception at the Bretton Woods conference as the emerging hegemon (Woods 2006). Furthermore, institutionally, the US has enough voting power to block any proposed change to the charter. The US has such a strong influence at the Fund that scholars have put substantial effort into pinning down and documenting this influence. At one extreme, one can equate the US influence with total control over the IMF. Some studies have argued that the Fund is in fact a façade for protecting US interests; it provides an appearance of “multilateralism” while serving US interests (Crane 2000). A more nuanced approach is the framework of “conditional delegation.” The US mobilises informal governance channels behind closed doors at the Fund only to the extent that the result would affect its immediate strategic interests (Stone 2008). In issues that would not challenge or contribute directly to its interests, the US “lets” the Fund staff have autonomy (Stone 2008). In fact, it is now largely documented and accepted as a fact that the US looks after its allies at the Fund. The countries which are supportive of US foreign policy have easier access to the Fund resources (Barro & Lee 2005) and receive larger loans (Copelovitch 2010; Oatley and Yackee 2004; Stone 2008) with fewer conditions (Dreher & Jensen 2007). Non-US allied countries, conversely, are less likely to use Fund resources (i.e. borrow within the context of a lending arrangement) and when they do so, they receive smaller loans and more stringent conditions (Copelovitch 2010; Dreher & Jensen 2007).

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The US is, of course, not a unitary actor. A more refined approach would be to look at how different branches of government such as the office of the presidency affect the Fund policies. Vaubel et al. (2007) document that the change in the political party and ideology of the US president leads to substantive changes in the Fund policies in a statistically meaningful manner. Broz and Hawes (2006) argue that the US Congress would be supportive of the Fund as long as it serves its interests. Particularly, if the representatives receive electoral campaign donations from the banks with an international lending portfolio and have a constituency of predominantly pro-globalisation high-skilled workers, they are supportive of the Fund objectives (Broz & Hawes 2006). This less clear-cut picture of the US interests dominating the Fund allows us a more nuanced analysis of changes in the international system. It is less dogmatic in its approach and analysis and allows for incorporating the changes in the international system. In fact, this is not a purely hypothetical point, as we have observed such changes already for some time, leading for example to a more assertive role played by the Chinese government at the Fund (see discussion below). Another substantial change is the growing scepticism of the European institutions with respect to the Fund. Furthermore, there is the question of how the US’s rising unilateralism will affect a multilateral economic institution, the Fund, and whether they will clash. Previous studies document an overlap between US interests and the Fund’s approach to international (economic) relations. What would happen if they diverge? This chapter specifically argues that the US dominance at the Fund as well as other roles prescribed to actors such as China and the EU can be renegotiated on the basis of shifting alliances and preferences. More specific attention to and an analysis of those shifts would help us to refine the analysis. The next section discusses trilateral relations between the US, China and EU member states as voiced at the Fund and documents those shifts before moving on to the analysis of the shifts in the positions of China and the EU. China’s “Undervalued” Currency and Exchange Rate Politics at the Fund The IMF, overseeing the stability of the international monetary system, is at the epicentre of exchange rate politics, and by extension, international trade politics. The US and European countries and institutions have long used the Fund as a forum to criticise China for undervaluing its currency and thereby gaining an unjustified advantage over its trading partners. When a currency is undervalued in real terms, it becomes easier for the country to export, as it is cheaper for the rest of the world to buy its products. This, however, harms domestic demand and consumers (as an undervalued currency makes it more expensive for them to buy from the rest of the world) (Frieden & Broz 2006). More importantly, perhaps, it makes it harder for other countries to export to China, as their products become more expensive compared to competing Chinese goods due to the relative overvaluation of their currencies. In 2001, after the Asian financial crisis, the Executive Directors acknowledged that “China’s exchange rate policy had served both China and the region well in

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recent years” (IMF 2001, p. 2). However, they also called on the country to “move toward greater [exchange rate] flexibility,” which would mean moving towards a floating regime, where China would gradually let market mechanisms determine the exchange rate between the RMB and other world currencies. In time, the tone of the language got stronger, urging China to revalue its currency. In 2006, the Executive Director of the US at the Fund, Ms. Lundsager, stated: We are perplexed by Mr. Wang’s [Executive Director of China] statement that changes in the RMB reflect economic fundamentals … The 55 percent growth in the trade surplus so far this year indicate both an exchange rate that is undervalued and a growing external imbalance that cannot be explained by structural factors. (IMF 2006b, p. 2) The statement continues: “We urge China, as a major beneficiary of the openness and flexibility of other major economies, to show similar flexibility and thus contribute to a rebalanced, robust global economy.” The French Executive Director joined in the criticism stating that: “Frustration is building up among China’s trade partners as the arguments used by the Chinese authorities to justify the limited appreciation in the exchange rate may not always be fully convincing” (IMF 2006a, p. 2). The German Executive Director, however, unlike the US and France, adopted a more accommodating stance and argued that the “large current account imbalance is not solely the result of the real exchange rate level, but also of increased openness of the Chinese economy and of domestic demand developments in foreign markets” (IMF 2006c, p. 2). In the same year, the European Commission called on China to implement a more “consumptionled growth” strategy and greater exchange rate flexibility (2006d, e, 2007a) “for curbing China’s large current account surplus” (2006e, p. 4). The global financial crisis, however, seems to have softened the stance of most EU member states, while the US preserved a hardliner stance on the claim of undervaluation of the RMB. In 2010 the European Commission still called on China to transition to a more flexible exchange rate regime (IMF 2010c), and one year later it repeated that “[t]he Chinese renminbi remains significantly undervalued making a re-balancing of global growth more difficult” (IMF 2011a, p. 3). However, such calls were dropped from the Commission’s IMFC statements after 2011. During the discussion in the Executive Board on Article IV consultations with China in 2015, the American Executive Director, Mr. Sobel, urged the Chinese authorities to move towards a market-determined exchange rate (a floating exchange rate) and to reduce and to document the interventions in the exchange rate market (IMF 2015c, p. 37). By contrast, the German Executive Director, underlining the importance of China for the world economy, stated: “We welcome the progress on rebalancing over the last years and call on the authorities to continue to push for greater exchange rate flexibility” (IMF 2015c, p. 52). Similarly, the French Executive Director stated that “we take note of the staff diagnosis that the exchange rate is no longer undervalued,

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given the large appreciation of the real effective exchange rate experienced over the last 12 months” (IMF 2015c, p. 50). The UK representative, on the other hand, sided with the American one in arguing that “[a] more flexible, marketdetermined exchange rate is needed to promote rebalancing and expand the scope for independent monetary policy’ (IMF 2015c, p. 59). One can argue that the conflicting opinions of the US and EU institutions and member states (with the exception of the UK at the time) can be explained by the differentiated impact of the global financial crisis on the American and the European economies. While the US swiftly resumed growth after 2009, the European economies required significant intervention and bail-out packages. In fact, the EU asked the Chinese authorities to finance the rescue packages by buying sovereign debt instruments (Kaya 2015, p. 114). The greater need for Chinese involvement in the crisis bail-out might indeed explain the softening position of European countries on China’s exchange rate policy. With the undervalued currency and exchange rate regime at the centre of the debate, other issues that the US and European countries brought up at the forum of the IMF were anti-money laundering legislation and combating the financing of terrorism (AML/CFT), non-concessional lending of China to countries that are eligible for debt relief under the “highly-indebted-poor-country” (HIPC) initiative and the transparency and availability of macroeconomic data. Especially regarding the non-concessional loans, both the American and French Executive Directors have termed China’s behaviour “free-riding,” urging China to follow the IMF and World Bank’s debt sustainability framework (IMF 2006b, p. 4). The following section will look more closely at the changing Chinese rhetoric on these topics at the IMF. China at the Fund: A U-Turn? In the face of strong criticism at the IMF by other members of the international community, China seems to have implemented an interesting twist in its approach to the Fund. This change seems to come in two steps: firstly, after the quota reform granting more rights to China was accepted at the Fund in 2010, and secondly after October 2016, when the Chinese RMB was included in the SDR basket. While in the pre-2010 period, China appeared to hold a very critical stance vis-à-vis the Fund’s conditionality and the limited involvement of developing countries in its policies and recommendations, after 2010 this stance seems to be softened while still including some of the “old” criticism regarding voice and representation. Since October 2016, debates document a complete change in China’s approach. The country emerges as a diligent and enthusiastic supporter of the Fund and its role in contributing to international monetary stability and global trade while vehemently opposing unilateralism and trade protectionism. China, in the aftermath of the Asian financial crisis in the late 1990s and early 2000s, heavily underlined its developing country status and called industrialised countries to take responsibility for global economic growth (IMF 2003b, IMF 2004). In his statement to the IMFC in 2003, for instance, China’s IMF Governor,

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Mr Zhou Xiaochuan, stated that “the major industrial countries – the United States, the EU, and Japan, in particular – should assume major responsibility for the global recovery and restructuring by … giving developing countries greater market access, and gradually addressing the problem of fiscal imbalances” (IMF 2003b, pp. 1–2). He also repeatedly called on the IMF to focus its surveillance activities on the developed countries (IMF 2003b, 2004, 2010b) underlining that “[i]n light of the enormous influence that the major advanced countries have on global financial stability, the Fund should first intensify its surveillance and assessment of these countries’ financial sectors and markets” (IMF 2003b, p. 2). He criticised the Fund’s ability to implement surveillance for developed countries and argued that “the IMF’s effectiveness in monitoring developed countries, especially the key industrialized countries which have a systematic influence, is a major cause of concern” (IMF 2005, p. 4). China also called for a differentiated treatment of developing countries by the Fund compared to the industrialised ones. For instance, Governor Zhou called for increased support for developing countries “to promote structural changes and eliminate poverty” (IMF 2003b, p. 2). Support for poverty reduction in low-income countries (LIC) was reiterated in 2005 (IMF 2005). China seemed to be especially determined regarding the role of trade for developing countries. The Chinese Governor, speaking on behalf of his government, argued that “[t]rade is an important tool for developing countries, enabling them to use their comparative advantage for the purposes of increasing revenue, promoting social and economic progress, and integrating into the world economy” (IMF 2003b, p. 3). He also called on the World Trade Organization (WTO) and the Fund to support the Doha Round more strongly, facilitate the reduction of distortions and unfairness in the multilateral trade system, promote greater market access, especially access for goods in which developing countries have comparative advantages, and make a substantive contribution to the cause of global development and poverty reduction. (IMF 2003b, p. 3) The call for “lowering trade barriers … and reducing agricultural subsidies” emerges as a general theme in the pre-2010 period (IMF 2005, p. 6). This support for the Doha Round and the call to “speed up negotiations” (IMF 2005, p. 2) and to “carry the Doha Round forward” (IMF 2006f, p. 1) were repeated by the Chinese authorities in the subsequent years. China also had a critical approach to the Fund’s activities and policies emphasising the sovereign decision-making rights of member countries. Regarding the AML/CFT legislation, the Chinese Governor stated that “the Fund should focus on its core and traditional areas. In addition, when participating in AML/ CFT work, the Fund should respect the sovereignty and specific conditions of individual countries and allow them to exercise their own initiative” (IMF 2003b, p. 4; IMF 2004, p. 5). Similarly, in a different statement of the same year, the Deputy Governor Mr. Li Ruogu argued that “[s]ince the IMF does not

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have the required expertise in the AML area, particularly in the law enforcement arena, and since this work is not its core business, the IMF should not overemphasize it” (IMF 2003a, p. 5). The statement continues arguing that “the IMF should always adhere to the principles of voluntary and cooperative participation and respect for sovereignty and national conditions of governments of all countries” (IMF 2003a, p. 5). Also, in her 2007 statement to the IMFC, Deputy Governor Hu Xiaolian called on the IMF to “take the opinions of all concerned parties into account and build broad consensus among all member countries to ensure that it would benefit them all” while reforming the Fund surveillance (IMF 2007a, p. 3). In this period, in response to the exchange rate criticisms, China disputed the exchange rate theory in macroeconomics. While giving her IMFC statement in 2007, Deputy Governor Hu of the People’s Bank of China argued that Given the limitations of various exchange rate analytical tools, it is well known that the concept of exchange rate misalignment is subject to theoretical weaknesses, their estimates highly unreliable, and therefore could not serve as criteria or premises for surveillance. (IMF 2007a, p. 3) Once again, while referring to various issues, China kept underlining that the Fund should limit its activities to its area of expertise and warned that “Biased advice would damage the Fund’s role in safeguarding global economic and financial stability” (IMF 2007a, p. 3). More generally, China called for greater participation and voice for developing countries in formulating policies and codes, criticising their “limited voice in international institutions” (IMF 2004, p. 5). In 2005, the Chinese authorities argued that “the key to reforming the IMF’s governance structure is to augment developing countries’ voting rights” (IMF 2005, p. 5). They also emphasised that differences in countries must be respected (IMF 2003b, p. 4). This speaks to the general criticism directed at the Fund that it implements one-size-fits-all policies pushing for the neoliberal opening up of markets (Copelovitch 2010; Woods 2006). Directly underlining this point, Governor Zhou argued that “A simplistic, one-size-fits-all model should be avoided” (IMF 2005, p. 4). More generally, China repeatedly called for respecting the individual circumstances in member countries in surveillance and conditionality (IMF 2003b, 2004, 2005, 2007a, 2008, 2011c, 2012). In its criticism, China expressed satisfaction with the establishment of the Independent Evaluation Office (IEO) in March 2000 – in the aftermath of the Asian financial crisis – in order to “assess the IMF’s operations and policies.”8 It however also called on the IEO “to listen to comments and suggestions from all sides, provide more objective and systematic evaluations of work that related to the Fund’s purposes, and offer constructive and feasible suggestions” (IMF 2003, p. 4). The Chinese also repeatedly demanded a revision of the quotas at the Fund (IMF 2003b, 2005, 2007a, 2008, 2009a, 2010b, 2011c, 2012, 2013b, 2015b,

136 Saliha Metinsoy 2016a) “reflecting the rapid economic growth of the developing countries over the years” (IMF 2003b, p. 4) and “members’ changing positions in the world economy” (IMF 2008, p. 5). Among those rapidly growing developing countries, China is of course a frontrunner. In 2009, China intensified its criticism and argued that “The persistently misaligned quota shares and underrepresentation of emerging market and developing countries hamper Fund governance and evenhanded surveillance. It undermines Fund legitimacy and effectiveness” (IMF 2009a). The same call for revising the quotas was repeated with a similar urgency and criticism in April 2010 (IMF 2010b). the Chinese authorities argued that “The severe underrepresentation of emerging market and developing countries in the IMF seriously affects the Fund’s legitimacy and effectiveness, and must be promptly corrected” (IMF 2010b, p. 3). In 2011, the Chinese Deputy Governor, Yi Gang, called the 2010 quota reform a “breakthrough” (IMF 2011c). Every year after this point, China called on the member states to ratify the reform (IMF 2012, 2013b, 2015b). In 2015, Mr. Zhou, in his statement, suggested that [t]o avoid further undermining the legitimacy of the Fund [emphasis added], we urge the U.S. to ratify the 2010 quota and governance reform at its earliest opportunity, and any interim step should represent a meaningful advance to the goals of the 2010 reform without substituting for the reform itself. (IMF 2015b) We can call the period between 2010 and October 2016 a “neutral” period, where China does not lend enthusiastic support for the Fund yet but refrains from harsh criticism. It brings up some of the older issues such as help for low-income countries in this period. However, it does not argue that the Fund falls short of adequate surveillance of advanced countries and implements “one-size-fits-all” advice, or that it lacks legitimacy. The Doha Round of the WTO and the request for more favourable terms in trade for developing economies also seems to be dropped. Perhaps the most important development in this period is the launch of the quest to make the RMB an SDR basket currency (IMF 2015a). The Chinese authorities declare that they will “fully respect the IMF’s procedures and processes in the SDR review” (IMF 2015a, p. 5). They also state that “the opening up of the Chinese economy will be further deepened to facilitate integration into the global economy” (IMF 2015a, p. 4). In this period, the Chinese RMB switches to a managed floating regime and becomes more flexible. Starting from October 2016, after the Chinese RMB is added to the SDR basket, China demonstrates enthusiastic support for the Fund’s actions First of all, in this period, China seems to drop its rigorous emphasis on the differentiation of policies and Fund activities for developing and developed countries. The country still mentions developing countries in the IMFC statements. However, the context seems to be changed. China, rather than underlining its developing country status and calling the developed countries to take more responsibility for international economic growth, advises developing countries to reduce volatility in their financial systems and strengthen their monetary policies. For

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instance, in the October 2018 meeting, new Chinese Governor Yi Gang suggested that “[e]merging market and developing countries should take steps to control contingent liabilities and balance sheet mismatches, curb financial market risks, monitor foreign currency debt exposures, and enhance resilience to financial tightening, capital outflows and commodity price volatility” (IMF 2018a, p. 2). In the April 2019 meeting, similarly, there was a call for developing countries to implement more growth-oriented macroeconomic policies and promote infrastructure projects (IMF 2019b, p. 2). The country maintained an emphasis on revising quotas. The tone is again different: this time a distinction between “emerging, dynamic economies” and “developing economies” is drawn and more representation is demanded for both. Perhaps reflecting the new position China assumes for itself at the IMF, its Deputy Governor Chen Yulu, in April 2019, argued that “IMF quota reform should objectively reflect the relative positions of member countries in the global economy” (IMF 2019b, p. 5), rather than referring to a lack of reform undermining the legitimacy of the Fund or calling for greater representation and voice for developing countries in general, as Chinese officials used to do in the years up to 2016. Interestingly enough, starting from 2016, China drops its emphasis on (a lack of) the IMF’s legitimacy and its call for restraining its activities and respecting its members’ sovereignty. On the contrary, Chinese representatives in fact call for greater involvement by the Fund in using more expertise in macroeconomic policies to help its members, especially the developing and low-income countries, to establish and enhance policy frameworks and institutions, including an independent monetary policy framework, a flexible market-based exchange rate regime, strict fiscal discipline, budget system and debt management, and an effective tax system in line with national conditions. (IMF 2017a, p. 4) What is particularly noteworthy in the statement is the call for a flexible marketbased exchange rate regime after decades-long heavy criticism of the Chinese fixed exchange rate regime at the Fund by other members. In the post-2016 era, China also embraces a more supportive role for the Fund’s activities and for multilateral cooperation. Chinese Governor Zhou stated that “[w]e support the IMF further improving its lending toolkits and strengthening its cooperation with regional financial arrangements to jointly enhance the global financial safety net with the IMF at the center” (IMF 2017b, pp. 4–5). In a different statement in the same year, China reiterated its support for the Fund stating that “[w]e support an active role for the IMF in multilateral macroeconomic policy coordination, its continued commitment to the principles of globalisation, and multilateralism, and its efforts in assisting the sustained and all-round recovery of global trade and investment” (IMF 2017a, p. 4). In its IMFC statement in 2018, the Chinese government called on the IMF “to play a greater role.” Chinese Governor, Yi Gang, stated that

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Adding to the rhetorical support, the Chinese government has started to lend practical support to the Fund by establishing the Joint China-IMF Capacity Development Center in order to “help build strong economic institutions and foster human capacity development in the IMF’s core areas of expertise, in China and in countries associated with the Belt and Road Initiative” (CICDC, n.d.). Perhaps more importantly for this volume, China emerges as staunch defender of multilateralism, globalisation, and international trade starting from 2017. In his speech to the IMFC in 2017, the Chinese Governor, Mr Zhou, stated that [a]ll members should continue to advocate multilateral cooperation, strengthen macroeconomic policy coordination … It is especially important to enhance the multilateral system of open and free trade and investment, jointly resist protectionism, and accelerate the liberalization of global trade and investment. (IMF 2017b, p. 2) In 2018, the support for multilateral trade and opposition to protectionism seem to have increased in volume and emphasis compared to the pre-2017 period. Chinese Governor, Yi Gang, states: The rising trade protectionism, friction and policy uncertainties have begun to dampen global business confidence and resulted in increased financial market volatility. Investment and trade as well as economic growth have also been dragged. In the medium and long term, trade protectionism could also disrupt global production chain, supply chain and value chain [sic], hampering technological innovation, and ultimately supress growth potential. Therefore, continued efforts are needed to strengthen macroeconomic policy coordination, oppose all forms of trade and investment protectionism, and jointly promote global investment and trade liberalization [emphasis added]. (IMF 2018a, p. 1) Similarly, in 2019, China granted unequivocal and enthusiastic support for international trade. The statement argues that [t]he IMF should continue to support an open, inclusive, and rules-based multilateral trade system … China is willing to strengthen cooperation with all parties to safeguard and improve international rules, promote open, more

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stable, and more transparent trade policies, support trade and investment liberalization and facilitation, and oppose trade protectionism. (IMF 2019b, p. 6) To be sure, Chinese criticism of protectionist trade policies is not completely new. However, the context of support for trade in the post-2016 era seems to be changed compared to earlier periods. While China placed conditions and clarifications on its support for trade before 2017, especially underlining developing countries’ interests, it seems to be granting unequivocal support for open and unrestricted trade irrespective of development status since 2017. For instance, in 1999, the Chinese Governor, Mr. Dai Xianglong, called on developed countries, specifically, the US, Japan and Europe, “to be alert to trade protectionism while they try to stimulate their domestic demand, and to further open their markets to the developing countries” (IMF 1999). Similarly in 2001, the Chinese Alternate Governor argued that “[a]dvanced countries should open up their markets to developing countries and eliminate all kinds of trade barriers, especially those imposed on products where developing countries have the comparative advantage” (IMF 2001). In the post-2016 period, such qualifications and emphasis on the distinction between developing and developed countries seem to be dropped, and China seemed to emerge as an enthusiastic supporter of global trade in general. While China became a keen supporter of the IMF after 2016, the opposite process seems to be unfolding for European countries and the EU in general. The next subsection discusses the lukewarm relations between the Fund and the European countries in the post-2010 era. The EU and the Fund: Possibility of a European Monetary Fund? The EU has a special structure in terms of representation at the IMF: its member states individually are IMF shareholders and participate in IMF fora such as IMFC meetings, while the EU institutions such as the European Commission and ECB are also present in the same fora but without membership status. This section analyses the EU-IMF relations by looking at the position of those two European institutions, as they are better placed to reflect European interests as a whole compared to individual countries. Furthermore, in this section, the EU-IMF relations are analysed in three different periods: the pre-global financial crisis period (between the years 2005 and 2007), the crisis period (between the years 2008 and 2015) and the post-crisis period, which coincides with the election of Trump as the US president (between the years 2016 and 2019). Although the main objective of the chapter is to analyse the rise of unilateralism in the US and the trilateral relations between the US, the EU and China as a result, a study of the crisis period is especially critical in terms of documenting the dynamics of conflict and cooperation between the EU institutions and the IMF and underscoring the importance of the vigorous support China lends to the Fund after October 2016. In the pre-crisis period, the European Commission adopted a global outlook in discussing exchange rate and trade politics. This focus shifted with the

140 Saliha Metinsoy global crisis starting in 2008 and triggering the European sovereign debt crisis from 2009 on. In the pre-crisis period, the Commission underscored the Doha Development Round as a top priority of EU trade policy (IMF 2006d, e, 2007). Similar to China, it called for “[e]nhancing the voice and representation of lowincome countries” (IMF 2007b, p. 4). It argued that [t]he Fund’s legitimacy – and hence relevance – might be put at stake if in particular the quota reform fails to reach a satisfactory conclusion for all of the actors involved. This will require redressing the under-representation of dynamic and emerging market economies. (IMF 2007b, p. 4) It yielded unequivocal support for “an open, rules-based multilateral trading system” (IMF 2006d, p. 7) and argued that “[t]he EU is fully committed to open markets, progressive trade liberalization and multilateral rules” (IMF 2006d, p. 8). This tone changed in the crisis period (starting from 2008) and the EC adopted a more inward-looking focus and a more critical stance vis-à-vis the IMF. This is partly a reflection of the close cooperation between the European institutions and the Fund in European lending programmes. The IMF participated in joint lending programmes to European countries in cooperation with the ECB and EC after the global financial crisis. Firstly, Latvia and Hungary in 2008, and Romania in 2009 borrowed from the IMF in cooperation with the European Commission. Later, Greece and Ireland in 2010 and Portugal in 2011 joined the borrowers and borrowed in a trilateral arrangement of the IMF, the European Commission and the ECB (collectively called the “Troika”). Finally, Cyprus received financial assistance from the Troika in 2013. This cooperation underscored some significant policy divergence between the Fund and the European partners. Especially in the memorandum of understanding signed with Greece in 2012, the IMF defended debt relief and restructuring, while the European partners were against it. The events culminated in the IMF publishing a paper just before the Greek referendum in June 2015 that debt restructuring was necessary in Greece, while the European partners were mostly concerned about preventing a disorganised exit of Greece from the euro area (Weisbrot & Johnston 2016). In its statements at the IMFC in 2009 and 2010, the Commission emphasised fiscal responsibility and exit from fiscal stimulus programmes (IMF 2009b, 2010c) as opposed to the IMF’s emphasis on fiscal stimulus in the same period as a part of its transition towards more Keynesian policies (Clift 2018). Similarly, in Latvia and Romania, the partners clashed over the content of conditionality: the IMF defended more “soft Keynesian” policies, while the European partners successfully opposed this stance and staunchly defended policies that can best be described as following the “Washington Consensus”9 (Lütz & Kranke 2014). Perhaps more importantly in this period, the Commission started articulating European institutions and mechanisms in the making that would render two of the IMF’s core competencies, i.e. conditional crisis lending and surveillance, at best

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duplicate and at worst redundant. Among those institutions, the European Stability Mechanism (ESM) (IMF 2011a) and widening financial assistance mechanisms (IMF 2011b) are perhaps the most critical ones. The ESM was created in 2012 as an intergovernmental entity, where Eurozone finance ministers are the main decision-makers. It provides credit to Eurozone governments that have lost (or are about to lose) access to financial markets and cannot borrow from them on favourable terms (i.e. with acceptable interest rates) (Scheinert 2019, p. 2). The ESM can also directly “recapitalise financial institutions” (IMF 2013a). Furthermore, the EC started to take over some surveillance functions (IMF 2011b) and “has carried out in-depth reviews of the economies of 17 member states” (IMF 2014). These are indeed the core functions of the IMF that were discussed earlier in the chapter. Furthermore, in the years after the crisis, European member states started to debate establishing a European Monetary Fund (EMF). In a speech on the potential EMF in April 2018, the head of the ESM, Klaus Regling, argued that: Europe has come to rely less on the IMF. At the start of the crisis, the Fund was needed not only for its financial firepower, but also for its broad experience with assistance programmes. Over the years, the financial contributions of the Fund have become gradually smaller … We also know there is criticism inside the IMF, from its non-European members, who say that the Fund has been too active in Europe. Consequently, Europe may not be able to count on the IMF to the same degree as in the past. Therefore, it seems reasonable that the ESM and the European Commission in the future will be jointly responsible for designing, negotiating and monitoring assistance programmes. (Regling 2018) Indeed, the Commission prepared a proposal in December 2017 for establishing an EMF with extended capabilities for the ESM and placing it under the EU legal structure (IMF 2017c). The European Parliament issued a favourable recommendation and advised retaining the name ESM for the institution on the grounds that the name is known in the financial markets and the ESM more firmly signals that the monetary policy is an ECB competence. The EU legislative process is ongoing at the time of writing. In the post-crisis period, the European institutions have also regained some of their global focus and again started to bring up some global trade themes in the Fund fora, while the critical stance also slipped into the post-crisis evaluation of the partnership between the European institutions and the Fund. One critical theme that has emerged in this period is the call for “due account for interconnectedness” in the Fund’s activities in EU member states (IMF 2015d, e) and updating surveillance activities of the Fund with similar due regard for the particularities of currency unions. The Commission seems to be warning the Fund against implementing a “one-size-fits-all” approach in currency unions in conditionality design as well as in surveillance activities similar to China in the pre-2010 era (IMF 2016b) and argues that “due account would need to be taken of the respective mandates and policies of all institutions involved” (IMF 2017c,

142 Saliha Metinsoy 2016b, 2014a, b). Debt restructuring that created a fallout between the partners in the Greek memorandum of understanding also seems to be a lingering theme. The Commission calls for working towards a convergence of approaches in debt sustainability analysis and calls for case-by-case analysis rather than automatic debt restructuring in Fund programmes (IMF 2018b). Furthermore, the Fund’s conditionality is put under scrutiny by the European Commission. The Commission calls for the right combination and sequence of reforms in conditionality and emphasises the short time span of IMF-sponsored reforms (IMF 2018b). These criticisms can be read as legitimising the need for a European Monetary Fund taking over some of the major functions of the IMF. In terms of stance vis-à-vis multilateral cooperation and trade, the ECB subtly alludes to the “threat” of rising protectionism and global trade frictions (potentially referring to the rising unilateralism and protectionism in the Trump era) (European Central Bank 2018, 2019). One key theme that emerges in the IMFC statements by the European Commission in the years from 2017 to 2019 is the commitment to “an open and rules-based multilateral trading system, with the WTO at its centre” (IMF 2018b, 2019c). The statement calls on “the international community to tackle the root causes of trade tensions by developing strengthened rules to discipline non-market-oriented policies and practices” (IMF 2017c, 2018b, 2019c). The IMFC statements of the Commission (and individual member states, for that matter) are highly repetitive, bringing up similar themes, issues and recommendations. In some cases, two statements from two consecutive years repeat the very same sentence word-for-word, and issues that are discussed do not change frequently. In light of this, the newly emerging emphasis on an “open and rules-based multilateral trading system” starting from 2017 is highly intriguing. Another recurring theme in the same period is the “strong support for the current system of multilateral economic institutions” (IMF 2017c, 2018b), and the IMF as a “key pillar of the international monetary system” (IMF 2017c). The European institutions can be argued to lend increasing support for multilateralism against protectionism despite their lukewarm relationship with the IMF. The joint European lending arrangements of the Troika during the crisis period can be argued to have caused much friction and conflict between the partner institutions (i.e. the EC, the ECB and the IMF). While maintaining the support for the Fund as a global multilateral economic institution enforcing international monetary cooperation, the EU and the European countries seem to be growing more sceptical of the Fund and developing their own European mechanisms of a stability fund in order to reduce its role in the European countries and the Eurozone. This is in stark contrast to China, which has recently emerged as a keen, and to a large extent unconditional, supporter of the IMF. Embracing multilateralism and lending strong support to the IMF as well as taking up global economic issues that are not confined to the developing countries, can China replace the position of the US, promote multilateralism and “save” the IMF? More importantly perhaps, what does this mean for “conditional delegation” at the Fund and the US’s privileged position? The next section

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specifically discusses the implications of China’s “U-turn” at the Fund and the impact of shifting alliances in the trilateral relations between the US, China and the EU on the IMF.

Multilateralism in Peril or New “Multilateralism” at the Fund: What Next? This section looks at the impact of the changing position of China and the EU in the trilateral relations between the US, China and the EU. It particularly looks at three potential accounts: a dominance of the state interests at the Fund where China replaces the US (realism); an institutional account where the institutional regime would block such a replacement (liberalism); and a norm-based account where the Fund bureaucracy would define the broad contours of change within its organisational goals and priorities (constructivism). These accounts are also tied to the three roles of the IMF: a forum for intergovernmental interest representation (realism), a rule-setter for and an enforcer of international monetary cooperation (liberalism) and a normative authority and a bureaucratic organisation (constructivism). The IMF is a highly intergovernmental organisation, where economic interests take priority in the participation of member states in its various fora. The US has a general ability to look after its allies and promote its own interests at the Fund particularly because of its biggest lender status and its institutional power. The Fund is argued to function to serve US interests in broad terms such as encouraging neoliberal transition in developing countries (Stokes 2001; Woods 2006), as it has been the main beneficiary of open and flexible global trade after the Second World War. With a change of roles and interests, it might be argued that China has become the main beneficiary of uninhibited global trade. With a more and more active agenda vis-à-vis the IMF, can China replace the US at the Fund? Can its recent keen support for the Fund and its activities be read in terms of this type of an attempt? This would be in line with the realist accounts of international organisations (IO), which view IOs as a mere reflection of the balance of power in world politics (Mearsheimer 1995). The IMF emerged at the end of the Second World War reflecting the hegemonic power of the US. If this power balance changes, could the Fund work in favour of Chinese interests? Furthermore, could the rising unilateralism of the US create a vacuum of power, which China can fill? Theoretically there would be two problems with that argument. Firstly, the argument ignores the fact that the control of the US over the Fund is not absolute. The Fund has a bureaucratic organisation with its own interests (Chwieroth 2007; Nelson 2017) and a regime that has allowed it to function for more than seven decades. That bureaucracy might subvert or resist this type of role change. Secondly, the argument would implicitly assume that international organisations in general, and the IMF in particular, are unchanging, static institutions akin to a blank slate reflecting the interests of the most powerful state in the international system. The IMF has changed in its policy advice moving closer to soft Keynesian

144 Saliha Metinsoy policies in the wake of the global financial crisis (Clift 2018). This is a result and also the proof of self-reflection and the impact of ideational entrepreneurs at the Fund. Practically, a replacement of the hegemonic role of the US by China at the Fund is unlikely, because the institutional setting of the Fund would probably not allow for such an attempt. The US holds veto power that can block any substantial change in the charter or definition of tasks of the IMF. The institution has, for instance, attempted to reform its voting structure multiple times in the past with limited success. The efforts were blocked by the US Congress (Weisbrot & Johnston 2016). Moreover, China may not be at the point of taking over the US’s broader hegemonic position in world politics that would result in replacing the US at the Fund. Alternatively, China might ally with the Fund bureaucracy instead of overtly attempting to replace the privileged position of the US at the Fund, a scenario that would also appear plausible from a normative perspective. In fact, there might be some overlap in the agenda of the Fund staff and the Chinese administration in terms of promoting global trade and ensuring that countries do not invoke protectionist measures. In terms of its power to define what should be considered “sound” macroeconomic policies, the Fund is increasingly moving towards Keynesian policies defending capital controls in certain cases and promoting fiscal stimulus and intervention, thus moving away from its original free-market fixation (Clift 2018). There seems to be less trust in market mechanisms among the Fund staff compared to the pre-global financial crisis period. This type of change is evident in the words of the IMF’s former managing director, Christine Lagarde: “we engaged in a serious rethink of macroeconomics, to get a better handle on what we all had missed [in the global financial crisis].” This new position might be aligning better with the Chinese preferences for a stronger role of the state in the market as opposed to a dogmatic application of the Washington Consensus. In light of this discussion, we can conclude that there is an increasing alignment between the Fund bureaucracy and Chinese interests in terms of support for uninhibited trade and opposition to unilateralism while challenging neoliberal orthodoxies. The change at the Fund and conflicts that arose during the joint lending arrangements in the Eurozone crisis have increasingly alienated the European institutions and member states pushing them to search for alternatives outside of the IMF. Yet, they converge with the Fund and Chinese interests in their unequivocal support for global trade and in their objection to protectionist measures. The Fund seems to remain an important intergovernmental forum for airing and pursuing (international) economic interests for China and the European countries. One can also refine the “conditional delegation” framework based on the recent rise of US unilateralism and the responses from China and the EU. While the US enjoys a special position at the Fund due to the initial setup of the organisation, the control over the Fund bureaucracy is not complete. Organisations as well as state interests change over time. International bureaucracies can find themselves allies outside of the original hegemon and seek their own bureaucratic goals and interest

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via those alliances. The change might be happening within the broad contours of the original organisational setup (in this case, the US’s original disproportionate influence). Yet, the “delegation” of the US to the Fund remains “conditional” upon the organisational interests of the Fund and alliances that are formed outside of the US. The previous sections documented that all three major actors, the US, the EU and China, respond to their domestic and international priorities and position themselves at the Fund in accordance with those interests. Although definitively explaining the origins of the changed positions falls outside the scope of this paper, one can say that changed positions in a way alter the dynamics among the actors as well. The Chinese U-turn in lending support to the Fund, the European countries’ revised position vis-à-vis the Fund and the US’s rising unilateralism mean the terms of the US delegation to the IMF are re-considered. Although the process is open-ended and still ongoing at the time of writing, it might be safe to say that such shifts in preferences and positions, triggered by the rising unilateralism of the US, impact the Fund. But also, the internal and international interests also affect the positions of the actors. Furthermore, we can probably argue that multilateralism is not at peril, but that we are moving instead to a new form of multilateralism in the Fund, where the initial state support and influence structures are redefined.

Conclusion This chapter discussed the trilateral relations between China, the US and the EU at the IMF before and after Trump’s election in 2016. It particularly looked at exchange rate and macroeconomic policy coordination, and by extension trade and politics at the Fund. It argued that China has increasingly embraced multilateral governance and open trade, and opposed protectionism and unilateralism at the Fund. The EU on the other hand seems to be increasingly sceptical of the Fund’s ability to play the role of lender of last resort in European countries and seems to be in search of an alternative mechanism (such as an updated ESM with an updated ESM with the potential competencies of a monetary fund). Having said that, it still supports free global trade via the Fund. The US preserves its place as the most privileged member of the Fund and heavily criticises China for the undervaluation of its currency and for free-riding in trade politics. The chapter documented that those relative positions are mostly responses to actors’ self-defined interests more than reactions to one another. Having said that, change in the position of one actor also affects the positioning of others at the Fund. Such normative divergences may affect the prestige of the Fund, create reluctance amongst some members to rely on its support in crisis situations and possibly even lead to competing regional institutions. However, these tensions do not seem to reach the fundamental principles and institutional features of the type of multilateralism embodied by the IMF at the global level. In terms of decision-making, Chinese criticisms of the distribution of voting power can be seen to have some relevance in this sense, but this theme has received far less emphasis in China’s discourse on the IMF in recent years. At the same

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time, there seems to be no disagreement at present over the basic functions of (or goods provided by) the Fund such as surveillance and acting as lender of last resort. This would suggest some degree of “multipolar multilateralism” in the US-China-EU triangle at present, in which the main players are in broad agreement on the underlying ordering principles of the institution. Naturally, any strong shifts in positions by any of the three might lead to a totally different dynamic in the future. The chapter also asked how these changes in US, Chinese and EU perspectives would reflect on the Fund and argued that the institutional structure of and voting constraints at the Fund would not allow expansive reform. This, however, does not mean that the terms of the principal control of the US in the Fund cannot be and are not being renegotiated. Indeed, the chapter specifically proposed that US unilateralism and the change of philosophy at the Fund in the wake of the global financial crisis pushed a rapprochement between the Fund bureaucracy and Chinese interests. The Europeans seem to be in search of their own monetary fund. Yet, they also still participate at the Fund as a way of pushing for their global economic interests. The chapter provided nuance to the conditional delegation framework by specifically looking at the recent developments in the trilateral relations between the US, the EU and China and the US’s increasing unilateralism. It specifically argued that the original conditional delegation framework is highly static and cannot account for changing alliances, preferences and interests while it rightly specifies that US dominance is unlikely to be challenged at the Fund. This chapter proposed the argument that within that broad context of US dominance, there is a need to look at shifting preferences and alliances. Future work drawing on this chapter can specifically delve deeper and further refine the framework of conditional delegation and how changes in the original support structure can influence the functioning of a multilateral organisation in the contexts of other international organisations.

Notes 1 Special Drawing Rights (SDR) is a global reserve currency created by the IMF in 1969. Its value is based on the value of five major currencies (i.e. the SDR basket). Those are the US dollar, euro, pound sterling, Japanese yen and the Chinese renminbi. 2 Balance of payments is the official register of a country’s transactions with third countries such as imports, exports, capital inflows and outflows as well as remittances and reserves. 3 These practices are often termed “beggar-thy-neighbour,” as they aim at promoting the national economy at the expense of other states and show a lack of economic cooperation in the international system. 4 This is because of the “impossible trinity”: countries can have any two of the three economic policy goals, namely monetary policy autonomy, fixed exchange rate or free capital movement. It is impossible to have all three at the same time (Mundell 1963). 5 In practice, lending arrangements at times exceed the given quotas of countries. For example, Greece borrowed 3,200 times its quota in May 2010 (first memorandum of understanding signed between the Greek government and the Fund) (IMF 2010b).

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6 See IMF Members’ Quota and Voting Power, https://www.imf.org/external/np/sec/ memdir/members.aspx 7 Article XXVIII, Amendments, https://www.imf.org/external/pubs/ft/aa/index.htm 8 See IMF Chronology, https://www.imf.org/external/np/exr/chron/chron.asp 9 The Washington Consensus here broadly refers to the economic policies based on the primacy of markets as the agents as well as means of efficient distribution of resources and the price as the main mechanism for exchanges between actors. Reduction of the role of the state in the economy, removal of capital controls and deregulation of the labour market are some of the policies that might be included in the policy packages recommended to developing countries on the basis of the Washington Consensus.

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Accessed via online IMF Achieves. Washington, DC: International Monetary and Financial Committee, IMF. IMF (2019a) ‘IMF Factsheet: The IMF at a Glance’, available at: https://www.imf.org/en/ About/Factsheets/IMF-at-a-Glance IMF (2019b) IMFC Statement by CHEN Yulu Deputy Governor People’s Republic of China, 12–13 April 2019, International Monetary and Financial Committee, IMF. Washington, DC: International Monetary and Financial Committee, IMF. IMF (2019c) Statement by Pierre Moscovici, Commissioner European Commission April 12–13, 2019. International Monetary and Financial Committee, IMF. Accessed via online IMF Achieves. Washington, DC: International Monetary and Financial Committee, IMF. IMF (2020) ‘IMF Factsheet: IMF Quotas’, available at https://www.imf.org/en/About/ Factsheets/Sheets/2016/07/14/12/21/IMF-Quotas Kaya, A. (2015) Power and Global Economic Institutions. Cambridge, UK: Cambridge University Press. Lagarde, C. (2018) ‘Ten Years After Lehman-Lessons Learned and Challenges Ahead’, IMF, 5 September, available at https://blogs.imf.org/2018/09/05/ten-years-after-lehman -lessons-learned-and-challenges-ahead/ Lütz, S. and Kranke, M. (2014) ‘The European rescue of the Washington Consensus? EU and IMF lending to Central and Eastern European countries’, Review of International Political Economy, 21(2), pp. 310–338. Mearsheimer, J.J. (1995) ‘The False Promise of International Institutions’, International Security, 19(3), pp. 5–49. Mundell, R.A. (1963) 'Capital Mobility and Stabilization Policy under Fixed and Flexible Exchange Rates', The Canadian Journal of Economics and Political Science / Revue canadienne d'Economique et de Science politique, 29(4), pp. 475–485. Nelson, S.C. (2014) ‘Playing Favorites: How Shared Beliefs Shape the IMF's Lending Decisions’, International Organization, 68(2), pp. 297–328. Nelson, S.C. (2017) Currency of Confidence: How Economic Beliefs Shape the IMF's Relationship with Its Borrowers. Ithaca: Cornel University Press. Oatley, T. and Yackee, J. (2004) ‘American Interests and IMF Lending’, International Politics, 41, pp. 415–429. Regling, K. (2018) ‘A European Monetary Fund. For What Purpose?’, Speech at Euro 50 Group Conference, available at: https://www.esm.europa.eu/speeches-and-presentations/ european-monetary-fund-what-purpose-speech-klaus-regling 10 April 2018. Scheinert, C. (2019) ‘Establishment of a European Monetary Fund (EMF)’, European Parliamentary Research Service, available at https://www.europarl.europa.eu/RegData /etudes/BRIE/2019/635556/EPRS_BRI(2019)635556_EN.pdf Stokes, S. (2001) Mandates and Democracy: Neoliberalism by Surprise in Latin America. Cambridge: Cambridge University Press. Stone, R.W. (2008) ‘The Scope of IMF Conditionality’, International Organization, 62(4), pp. 589–620. Vaubel, R., Dreher, A. and Soylu, U. (2007) ‘Staff Growth in International Organizations: A Principal-Agent Problem? An Empirical Analysis’, Public Choice, 133, pp. 275–295. Weisbrot, M. and Johnston, J. (2016) Voting Share Reform at the IMF: Will It Make a Difference? Washington, DC: Center for Economic and Policy Research. Woods, N. (2006) The Globalizers: The IMF, the World Bank, and Their Borrowers. New York: Cornell University Press.

8

International Labour Standards (ILS) as a Sine Qua Non of Bilateral and Multilateral Governance of International Trade Increasing Potential for Conflict? Herman Voogsgeerd

Introduction The International Labour Organization (ILO), created more than 100 years ago in Versailles (1919) with a strong West European input, is by now a well-known international organisation. It is not as familiar as the World Trade Organization (WTO) with its dispute settlement system and ability to impose trade sanctions. The organisation uses a promotional method; it prefers to convince member states to ratify ILO conventions and after ratification poorer states may receive “technical assistance” in order to implement and enforce these labour standards. The United States (US), the People’s Republic of China (PRC) and all the member states of the EU are members of the ILO, and the EU itself has a good working relationship with the organisation. The ILO established International Labour Standards (ILSs), to which I will return later. The focus in this contribution is on the ILS and not on the ILO. The ILS have a life of their own beyond the ILO and are well-known in the area of international trade. They are explicitly mentioned in so-called trade and sustainability chapters of free trade agreements (FTAs), and many authors have written about the content and impact of these codes and FTAs (Bartels 2013; Harrison et al. 2019). Sustainability chapters that contain the most important ILS are now common in FTAs concluded by the US and the EU with other parties. This phenomenon is related to the increasingly contested nature of international trade in both the US and the EU, and this is partly due to the success of a rising PRC (China), which has recently become a true, and not only economic, powerhouse. Does this phenomenon imply a trend away from multilateralism to a multi-polar world order leading to bilateralism or pluralism? In the new treaty between the US, Canada and Mexico (USMCA) there is a provision on trade with so-called non-market economies (Art. 32.10 USMCA), probably with the PRC in mind. The position of China as an actor in this respect is less clear. China works with the ILO as it is a promotional organisation, is flexible and respects the sovereignty of the member states. A robust set of ILS in FTAs is, however, something that is especially promoted by the developed countries. China sees itself still as a developing country, and is not inclined to use these kinds of conditions of a social DOI: 10.4324/9781003167358-11

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and an environmental nature in its trade relations or the activities surrounding the Belt and Road Initiative (BRI). Already at the end of the 1990s political economist Dani Rodrik formulated “five simple principles for world trade” (Rodrik 1999) as he was already then aware of the legitimacy and the increasingly contested nature of trade rules. The trade system would protect large corporate interests over labour, the environment and consumer safety, and developing countries see rising protectionism from developed countries through the imposition of social issues in FTAs. Here is where his five principles come in: first, trade is a means to an end, not an end in itself. Ends are freely determined by countries and therefore, second, nontrade values such as the environment and labour standards matter as ends, if a country freely decides to uphold these values. Third, rich countries should not impose their institutional preferences in these areas on other countries. In the words of Rodrik, “trade rules should seek peaceful co-existence among national practices, not harmonization” (Rodrik 1999, p. 2). The terminology of peaceful coexistence is interesting vis-à-vis the PRC. Nevertheless, fourth, non-democratic countries should not be able to count on the same trade privileges as democratic countries. Here, Rodrik is clearly referring to China, at the time of writing not yet a member state of the WTO. Finally, countries also have a right to protect their social arrangements, and this might lead to temporary safeguards against imports threatening those arrangements. In this contribution the ILS as part of trade policy is studied. The focus will be on the period 2016–2019, covering the Trump administration in the US, the Xi presidency in the PRC and the Juncker Commission in the EU. Let us study some recently concluded trade agreements of both the EU and the US. I will limit myself to the EU agreement with Japan (2019) and the trade agreement that will replace NAFTA, the USMCA (2019). I will use the legalisation concept (Abbott a.o. 2000) to study recent developments concerning these three trade treaties and to analyse what the commitments made in this context mean. This concept will shed more light on the potential effectiveness of ILS. It will be argued here that the focus on ILS in FTAs is one way to sustain the open international economic order; calls for “a level playing field” are rising, and this does not have to imply a change in the current international order. The focus on ILS may, however, lead to increasing tensions between the EU, the US and the PRC.

The ILO and the ILS ILS could be qualified as all the rules in the conventions of the ILO. Of the many standards in ILO conventions, the governments at the UN World Summit for Social Development in Copenhagen (1995) pointed to the centrality of some of them (Charnovitz 2000, p. 151). Since the ILO Declaration of Fundamental Principles and Rights at Work (1998), eight fundamental treaties form the core substance of these ILS. Within the ILO system these eight treaties get special attention. Technical assistance for developing countries, for example, is directed and focused on these conventions: conventions no. 87 and 98 on freedom of

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association and the right to organise and collective bargaining, conventions no. 29 and 105 on the eradication of forced labour, conventions no. 138 and 182 on minimum age and the eradication of the worst forms of child labour, convention no. 111 on non-discrimination in employment and occupation and convention no. 100 on equal pay between men and women. These eight conventions have been mentioned explicitly in the Declaration of 1998, but it was added that these instruments may not be used for protectionist reasons and that developing countries should not be hindered from using their comparative advantages in trade. Without this addition many developing countries would not have supported the Declaration. As a Declaration (at least in the ILO system) is a solemn text it should be supported by all member states. EU member states ratified eight out of eight of these conventions, the PRC four out of eight (i.e. no. 100, no. 138, no. 182 and no. 111) and the US only two out of eight (only no. 105 and no. 182). The US argues sometimes that matters concerning the fundamental conventions are competence of the states and not the federation. Some of the Republican states have an openly hostile approach to freedom of association and collective bargaining in particular. There has been a fierce discussion on the significance of the Declaration; the debate between Philip Alston and Brian Langille is only one example (Alston 2006; Langille 2006). Alston criticised the setting apart of eight conventions visà-vis all other ILO conventions. It would weaken the binding force of these other treaties. Langille, having been in the service of the ILO, defended the setting apart of these eight conventions from all the other conventions. The ILO needed to refocus its activities in order to remain relevant; globalisation in the 1980s and 1990s had had not only positive developments for the international labour regime. The mixture of procedural (e.g. freedom of association) and substantive (e.g. forced labour) standards is a unique one and able to further strengthen other labour standards (Hughes & Haworth 2011, p. 58). That is why these eight conventions were selected. The refocusing of the ILO culminating in the Declaration of 1998 came after conflicts between the WTO and the ILO on which organisation should become the main one concerning labour standards. In Singapore (1996) these core labour standards issues were left to the ILO, as the WTO could not agree on a social clause (WTO 1996). A “social clause” consists of a link between getting advantages from international trade and the observance of certain minimum labour standards and at least presupposes a sanction in case these standards are not observed (Hughes & Haworth 2011, p. 61; Van Roozendaal 2002, p. 1). A related term is “social dumping,” focusing more on goods that are made with cheap labour, and here wages are an important element. Fair wages are not part of the eight core conventions of the ILO. That the core labour standards were primarily the domain of the ILO is also related to the fact that the two international organisations are very different in their approach to disputes. The WTO DSB used to have more “teeth” to try to change the behaviour of member states. The ILO supervisory committees, on the other hand, use a promotional method through reports sent by the member states to the ILO committees. They try to convince or persuade

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the member states to act in a certain way. Sometimes the committees make observations. Incidentally, they raise “serious concerns.” Nevertheless, the Declaration and its eight conventions have become a success as Tapiola noted during the 20th anniversary of the Declaration (Tapiola 2018). According to him, even the ILO system has “teeth,” especially if the ILO is able to operate in silence outside of high politics. Ratification of these eight conventions has progressed. Large countries such as the US and the PRC still have difficulty with freedom of association, and they did not ratify conventions no. 87 and 98. But even these two large countries ratified more core or fundamental conventions after the Declaration was issued in 1998. Who is not against the worst forms of child labour? A problem with almost all core conventions is that the standards are difficult to operationalise. What exactly is “freedom of association”? Guidance is needed to understand the concept (Herrnstadt 2013). It really matters how you define forced labour; more than one indicator may be necessary to formally speak of forced labour (Skrivankova 2010), and what exactly is “hazardous” child labour? Reports of the ILO supervisory committees, the Committee on Freedom of Association (CFA) and the Committee of Experts on the Application of Conventions and Recommendations (CEACR), might help as these are often specific and fine-tuned to the member state in question. The involvement of experts is essential in the operationalisation process. Mostly, only dialogue occurs as a first step. The promotional nature is at the same time the strength and the weakness of the ILS. It is the ILS in the form of the eight mentioned conventions that are now referred to explicitly in bilateral trade deals of the EU and the US concluded with third countries. Often, other aspects of labour law are added, such as the health and safety of workers and the establishment of minimum standards for wage earners, as is the case in the trade agreement between the EU and Canada (CETA). This implies that international trade between the two negotiating parties may not adversely affect the health and safety of the workers in both parties’ countries. The eight core or fundamental conventions of the ILO are, however, the nucleus of the ILS. But also health and safety and minimum wages are sensitive topics in international economic relations.

Free Trade under Pressure The rising popularity of ILS as an indissoluble part of free trade agreements is related to the growing legitimacy crisis free trade is in. Free trade has brought not only economic growth, but also rising inequalities within societies. Free trade agreements are beneficial for large multinational corporations, but not automatically for the general public. Rising protests by civil society groups and actors have become familiar since “the battle of Seattle” during a meeting of the WTO in 1999. Trade deals have as a consequence become more than agreements on tariffs and quotas and include regulatory issues such as environmental and labour standards. It is a question, however, whether this trend to include regulatory issues may harm the open nature of the international economy. As these topics

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are harder to relate to economic theory and increasingly spill over into norms and values, it is according to Rodrik likely that this new kind of trade agreement may lead to redistributive outcomes in favour of large corporate interests (Rodrik 2018, pp. 20, 21), and also Kennedy argued that this could happen under the guise of expert knowledge (Kennedy, 2016). Under some conditions critics of free trade might be right; free trade does not always lead to positive effects for all parties involved. If trade agreements have a certain redistributive effect to the disadvantage of workers, how is it possible to correct this? If we are not able to correct this, free trade itself may be in danger. The larger portion of global trade that the PRC gets may also harm certain groups in society. Globalisation has benefitted first and foremost large multinational corporations. Central bankers took notice of this in their meeting in Jackson Hole in Wyoming at the 2018 Economic Policy Symposium. Even the International Monetary Fund (IMF) in its World Economic Outlook (2018) urgently advises to improve the position of labour in comparison to capital. The slow rise of workers’ earnings and slowing social mobility are dangerous developments for the entire global economic system. Economic growth must be better spread over all people within a country; otherwise the political centre and the middle class will become vulnerable (M. Obstfeld, in World Economic Outlook, 2018). After the economic and financial crisis of 2008, wages have hardly recovered to the level before 2008 (IMF 2018). It is therefore submitted, contrary to Raess et al. (Raess, Dür & Sari 2018), that the rising popularity of ILS in FTAs does not only involve left-wing governments but governments across the political spectrum. The Trump administration changed its trade policy with help of the Democrats in Congress vis-à-vis Mexico. Moreover, not only large multinational corporations but also the PRC is profiting from the open nature of the international trade order since its becoming a member of the WTO. Above the five principles of Rodrik were mentioned. Do the eight core conventions of the ILS fulfil these principles? Many of the core conventions are about culturally sensitive issues such as non-discrimination, the right to strike as part of freedom of association and equal pay between men and women. There exist many different ways to operationalise the right to freedom of association, and many different cultural issues are involved here. The right to strike as part of freedom of association is disputed even within the ILO itself, between the employers’ side and the employees’ side in the International Labour Conference (Novitz 2012). The eight core conventions are able to fulfil almost all of the five principles, because the operationalisation implies that the eight core standards can be finetuned to the respective country and the pure imposition of standards on developing countries is therefore not a given. Reports of the CFA and the CEACR might help in this respect. ILO standards are promotional in nature and do not lead to hard sanctions except naming and shaming. As Rodrik argued, trade restrictions should be used to uphold the values of the trading countries, not to impose one’s values on others. In the Trade for All Document, former EU Trade Commissioner Cecilia Malmström clearly satisfies this principle for world trade of Rodrik; the new approach of the EU will “safeguard the European social and regulatory model

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at home” (Trade for All, 2015, foreword). The question is what “the EU social and regulatory model” exactly is about, as this concept is in in itself not transparent and clear. Imposing labour standards on for example developing countries is not what a trade agreement should do. Dialogue and the promotional method should be dominant. Hoang criticises human rights and labour-related elements of the trade negotiations between the EU and Vietnam after interviewing many actors in Vietnam (Hoang 2016, p. 18). In general, however, the EU uses consultations and dialogue to deal with such matters. Labour standards are not imposed; the freedom to regulate of every country is explicitly mentioned in EU trade agreements. The main difficulty is the principle that non-democratic countries should not receive the same preferences as democratic countries. This principle is difficult to uphold as a country such as the PRC is a member of the WTO. Only for WTO+ agreements, agreements that go beyond the requirements of the WTO, it is possible to take the democratic nature of a country into account. Many plurilateral trade agreements contain membership requirements such as democracy, human rights and the rule of law. An example is the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) in force since 2018 where the PRC is not a member. The PRC is a member of the Regional Comprehensive Economic Partnership (RCEP), agreed in 2020, where these conditions are not present.

Increasing Legalisation of ILS in Trade Agreements in Recent Years? There are some signs of increasinglegalisation in the sense of effective concretisation of ILS in EU and US international trade deals. Increasing legalisation means, after Abbott, that the terminology used in sustainability chapters is more precise, has more of an obligatory character and is increasingly open to delegation to dispute settlement bodies or committees of experts (Abbott a.o. 2000, p. 20). These three dimensions, precision, obligation and delegation, are used in this chapter. There is high precision if a text is a detailed rule, where there is not much discretion to interpret a rule and it is easy to determine whether there is compliance with the rule (Abbott et al. 2000, p. 31). High obligation occurs when there exists a clear intent to be legally bound; there is a legal rule and not a mere recommendation or guideline (Abbott et al. 2000, p. 26). High delegation involves dispute settlement by courts and access to these courts of private parties. Low delegation involves only pure political bargaining or bargaining within an institutionalised setting (Abbott et al. 2000, p. 32). I will start with precision and look at the text of the three agreements, then delegation which is also to be studied through the texts. Obligation is the hardest of the three criteria of legalisation, and obligation will partly depend on power relationships. After studying 483 preferential trade agreements, Raess et al. found that no agreement existed with exclusive references under obligations and substantive commitments, and they decided to not include this exclusive category in their measure. A strict legal interpretation of the texts of the trade agreement was found nowhere (Raess et al. 2018, p. 151).

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Precision For precision, one of the three dimensions of the legalisation concept, we have to look at the text of the sustainability or labour chapters of the free trade agreements themselves. In the Japan EU Free Trade Agreement (JEFTA) parties only “strive” to keep high levels of employment protection (article 16.2, paragraph 1). Effective enforcement is mentioned in paragraph 2 of that provision, but how that is going to be assessed remains a mystery as there should be, first, a “sustained or recurring course of action” by one of the parties, and, second, the continuous lack of enforcement must “affect trade or investment between the Parties.” These are two high hurdles leaving large discretion to both parties, and this seems to be deliberately intended. The only appearance of legal language is in article 16.2, paragraph 3: the parties may not use their laws “as a means of arbitrary or unjustifiable discrimination” against the other party. This legal language looks promising, but whether something is done depends on the criterion of delegation, to be discussed below. To use this provision will depend on political will. In the former US administrations’ activities to change existing trade deals such as NAFTA with Mexico and Canada, wages have been added as a topic in addition to the internationally recognised ILO core conventions, literally phrased as “acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health” (article 23.1 (e) USMCA). Minimum wages shall include “wage-related benefit payments” including profit sharing, bonuses, retirement and healthcare. This focus on acceptable minimum wages is a new aspect in addition to the core conventions of the ILO. Wages have been carefully avoided in the ILO Declaration of 1998, and have a direct impact on the comparative advantage of Mexico. In this respect, there is a difference between the old NAFTA labour side agreement and the text of chapter 23 of USMCA. First, it is clearly stated that parties only trade in goods that meet the obligations of the chapter (article 23.2, paragraph 3). This comes close to a social clause, as goods not made under sufficient labour conditions will be refused. This is a matter of high precision, therefore. For the automobile industry, in addition, there is a precise Labour Value Content Requirement: 40% of a passenger car has to be made by workers who earn at least $16 per hour (Burfisher et al. 2019, p. 8). Article 23.3 even contains clarifications, in a footnote, when there is a violation of this provision and how this can be established by one of the parties. A link with trade (or investment) is essential, but this can be easily established in case a person or industry that trades between the parties or invests in the territory of the other party or competes in the territory of one party with goods or services in the territory of the other party, in case that other party does not maintain a statute, regulation or practice (reference 4 to article 23.3). Also helpful is the non-adherence to a right set out in the chapter in a free trade zone or foreign trade zone (article 23.4, sub b); a trade zone is a small area specifically designed to stimulate international trade. A link with trade

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is therefore more easily established. This is a difference with the EU FTAs: in the USMCA there exists a presumption that a violation of a labour commitment in the treaty is linked with international trade; this presumption can be rebutted by the other party (Cimino-Isaacs 2020). It is interesting that it is clearly stated in reference 5 to article 23.3 that the right to freedom of association cannot be realised without protection of the right to strike. The US wants Mexico to respect the right to strike, while the US itself has not ratified ILO convention no. 87 on freedom of association. There are also precise rights with respect to worker representation in collective bargaining but these obligations are only applicable to Mexico, not to the US or Canada (annex 23-A). Mexico ratified fundamental convention no. 98 in November 2018, apparently in reaction to these negotiations on the USMCA. Compliance with or enforcement of labour law is treated in article 23.5, paragraph 2. This can happen in and via diverse ways. Governments of the parties have some discretion to allocate funds to enforcement. This discretion must, however, be consistent with the provisions of the agreement. One of the elements mentioned here is seeking “voluntary compliance,” but how this will have to be realised is not given. Article 23.12 gives detailed suggestions of potential cooperation areas, e.g. the identification and movement of goods produced by forced labour. In comparison with the most recent trade agreements to which the EU is a party, the scope of the labour chapter of the USMCA treaty is broader. The language is more precise. The US goes beyond the eight core or fundamental conventions. Article 32.10 USMCA contains an interesting clause, sometimes called the China clause (Vidigal 2020). When one of the three parties to the treaty starts negotiations leading to a free trade agreement with a “non-market country” it has to notify the other two parties three months before the start of negotiations. Each party may decide by itself what country is considered to be a non-market country. In case of a finalised agreement the other two parties have the possibility to review the text 30 days before the date of signature. The other two parties have the option to terminate the USMCA when this agreement with a non-market economy is concluded. This text is relatively precise, on the number of days, etc.; however whether something is effectively done with this provision will depend on political will. In the FTAs the EU concludes there is not such a provision on non-market economies. Delegation If we apply this dimension to ILS, one interesting development is the option of involvement of the ILO supervisory committees in the evaluation of a trade agreement. Vogt suggested that reports and observations of the ILO supervisory committees should have been used in the evaluation of labour policies of trade partners, such as the Republic of Korea (Vogt 2015, p. 857). In the US there is experience from before the Trump administration with this. Gravel and Delpech (2013) are positive on the role of the ILO supervisory committees such as the CEACR and the CFA in the evaluation of free trade agreements of the US.

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The number of observations and the robustness of the language used by both Committees (e.g. “deep concern”) have been used in the evaluation of US trade treaties with Guatemala, Bahrein and Peru by the Office of Trade and Labour Affairs (OTLA) of the Department of Labor, responsible for the evaluation of trade agreements. This institution hears complaints and “submissions,” e.g. from the US umbrella of trade unions the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO). This development continued under the Trump administration. In the agreement between Japan and the EU, JEFTA, provisionally in force since February 2019, a role for the ILO supervisory committees in the evaluation of parties’ implementation of ILS is an option. The Committee on Trade and Sustainable Development, which is responsible for the “effective implementation” and monitoring of the chapter on trade and sustainable development, is also competent to try to resolve differences between the trade parties (article 16.13, paragraph 2 JEFTA). Government consultations are the first layer in trying to solve conflicts. Article 16.17 concerning these consultations mentions in its paragraph 4 that the activities of the ILO “shall be taken into account.” Moreover, the parties “may seek advice from international organizations including the ILO” and “shall discuss appropriate measures to be implemented, taking into account that advice.” This provision opens the option to take into account ILO supervisory committees remarks, but still leaves 100% discretion to the parties. In case government consultations do not lead to solutions, a panel of experts can be requested by one of the parties (article 16.18 JEFTA). This panel “can” take into account information from the ILO (paragraph 3). Both parties shall comment on information from these international organisations. In case of a real conflict between Japan and the EU, a panel of experts “shall interpret the relevant articles of this chapter in accordance with customary rules of interpretation of public international law” (article 16.18, paragraph 2). These provisions show a high degree of delegation combined with political bargaining in an institutionalised setting. The new designated president of the European Commission, Ursula von der Leyen, in a statement after her election to this top job on 16 July 2019 promised to uphold “the highest standards of climate, environmental and labour protection” and she especially announced a “zero-tolerance policy” on child labour (The Voice 2019). She is also committed to the appointment of a “chief trade enforcement officer” whose task is going to be the supervision of trade agreements that the EU has concluded and to fight for a level playing field (The Voice 2019). This statement clarifies that she understood there were worries within civil society concerning some of the effects of the trade agreements. In a review of the Commission’s new policies Harrison, Barbu and Campling pay attention to several failures in the enforcement of the trade and sustainability chapters: a number of involved actors such as trade unions have a too limited role (Harrison et al. 2019) and the role of these civil society mechanisms is not clear enough. In this respect, again, involvement of the observations of the ILO supervisory committees may be helpful to address some of these failures.

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In the new USMCA treaty that is going to replace NAFTA, there is in article 23.11 the possibility of a written public submission “from persons of a Party.” Involvement of the ILO committees is possible, but there is complete discretion to the parties to “establish cooperative arrangements with the ILO and other international and regional organizations to draw on their expertise” (article 23.12, paragraph 6). The observations and remarks of the ILO supervisory committees are often detailed but also take into account the specific situation of the member state. It remains to be seen whether these observations and remarks will be used systematically under the new USMCA. The overall title of article 23.12 is “cooperation.” So, delegation has been improved but is still largely diplomatic in nature. No courts are involved. The question remains, who is able to complain, only the state party or also the person or industry trading or investing? It is the state party that requests consultations. Recently, this happened in the trade relations between the US and South Korea. The United States Trade Representative (USTR) asked for consultations with the Republic of Korea about non-compliance with chapter 16 on competition of the KORUS, the treaty between South Korea and the US in March 2019. According to the US side the Korea Fair Trade Commission (KFTC), in some of its hearings, did deny certain US parties rights such as the possibility to review and rebut evidence in cases against these parties. This is deemed to be in direct conflict with obligations of the Republic of Korea under article 16.1.3 of KORUS. Lack of evidence in a competition hearing involves elements of due process. Legislative changes by the government of the Republic of Korea did not properly address this US concern (https://ustr.gov/about-us/policy-offices/press -office/press-releases/2019/march/ustr-req..., accessed 13 June 2019). Obligation Obligation seems to be the hardest of the three dimensions of legalisation to analyse; therefore this will happen after the other two dimensions have been treated. Intention to be bound is the essential criterion here. Free trade agreements in general give large discretion to political decision-makers. The parties to JEFTA commit themselves to effectively implement ratified ILO conventions in their laws (article 16.3, paragraph 5). The parties to the EU-ROK free trade agreement commit themselves to do the same (article 13.4). Sovereignty really matters as for example the USMCA labour chapter does not empower one party to operate enforcement activities in the territory of another party (article 23.5, paragraph 4). Measures inconsistent with the WTO or other trade agreements are not ‘stimulated’ (footnote 10). These commitments are really vague. Moreover, the USMCA cannot stand in the way of “essential security interests” (article 32.2 USMCA). Sovereignty is relevant here again, as a party defines itself what such an interest is deemed to be. Politics matters more than law. The current climate of international trade might imply that stronger states or groups of states such as the US and the EU will urge a higher sense of obligation from the smaller parties. South Korea has seen this twice, first when the EU asked for a consultation about the non-ratifications of

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some ILO core conventions. Second, when the US asked for consultations about an unfavourable decision of a fair trade commission in South Korea that had a negative impact on a US firm. Mexico as the smaller country in its relations with the US has to implement detailed laws concerning freedom of association and collective bargaining. So, the stronger of the two parties may set the tone, and the smaller country will have to abide by the rules stemming from the free trade agreement. There are, without doubt, power relations involved. As the EU was not satisfied with the efforts of South-Korea to ratify fundamental conventions of the ILO, especially convention 98 on the right to organize and collective bargaining, an independent panel of experts under the trade agreement was appointed by both parties. In the end of January 2021 the panel came with its conclusions that SouthKorea should do more to speed up the ratification process. The commitments undertaken by both parties to the agreement are legally binding, notwithstanding their effect on trade (European Commission, 2021). Lately, we hear a lot about “fair” trade, a level playing field and, more importantly, reciprocity. Reciprocity has been a core element of the original GATT treaty, although the term is only literally mentioned in article XXVIIIbis GATT, that negotiations and trade concessions should be on a reciprocal and mutually advantageous basis. Reciprocity, therefore, especially comes to the fore during large multilateral trade negotiations, where member states of the GATT/ WTO exchange concessions. Since the collapse of the Doha round there have not been major multilateral trade negotiations. The focus has shifted to bilateral trade deals, and the reciprocity argument is also used in this kind of deal. The consequences of modern trade agreements are increasingly measured after they have been concluded, and sometimes adjusted as in the case of the agreement between South Korea and the US. Reciprocity is a vague and abstract concept, but there is hardly another effective concept for the exchange of concessions (Lo 1990, pp. 306–309). According to Lo, it is governmental behaviour that should be under disciplines. Country A will obey these disciplines if trade partner country B does this as well. Lo thinks two orientations are important. First, that the comparative advantage of all negotiating countries should be taken into account, and second, that reciprocity should be used in order to bring forward the ideal of free trade. Retaliation is in this respect not a good idea (Lo 1990, pp. 308–311). Obligation is therefore the most difficult of the three legalisation criteria. It should be possible for labour and international trade to be developed at the same time. A certain flexibility is needed in this respect, and a legal approach to these issues is not self-evident (Bartels 2013). Marceau is right in that static formulas are not needed. The dynamic of progress is what matters (Marceau 2009). In general, the three studied trade agreements are flexible, although the USMCA is far-reaching with its detailed regulations concerning a Mexican minimum wage for products traded with the US. These provisions were hardened in December 2019 when the Democrats in the House of Representatives supported the USMCA under the condition that sanctions against non-complying Mexican employers would have to be made more severe.

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Consequences of the ILS for the Trilateral Relationship between the US, the EU and the PRC Although study of the three dimensions of the concept of legalisation shows promising trends in that ILS may become more important in the near future for international trade, at least for the EU and the US, it is not expected that this trend will change substantially the current international trade order. The political element in these ILS is still dominant over the legal element. Dialogue is more important than outright sanctions. The future of the WTO decision-making mechanism is of greater importance in this respect. The EU, the US and the PRC will undoubtedly continue to trade with each other as these three actors are simply too large. ILS will inevitably also become more important in the relationship between the three, and some conflicts in the labour area could spill over from the economic into the political sphere, with sensitive issues such as freedom of association and forced labour. Against the PRC the International Trade Union Conference (ITUC) already focusses on topics such as arrests of persons who help workers with their right of freedom of association in Guangdong province and the ethnic discrimination against the Uyghur minority in Xinjiang province (www.ilo.org). The CEACR reiterated the observation of the ITUC on this discrimination in 2020 and the Chinese government responded. ILO supervisory committees may help in operationalising the ILS in that these become acceptable for diverse actors including state authorities in the PRC. And also the EU member states and the US receive observations and requests from the ILO committees. The CEACR recently made observations on the two fundamental ILO conventions the US ratified, one on sanctions that lead to forced labour as punishment for participating in strikes in the state of North Carolina and related to convention no. 105 and one on hazardous work by children below the age of 18 in agriculture related to convention no. 182. It is submitted that thanks to the flexible and promotional nature of the ILO system, also the US and the PRC will continue to work with the ILO system. At least the eight fundamental conventions are therefore becoming important for the future of international trade, especially with Western countries. The discussion on a level playing field will not soon go away. The US has a dubious and somewhat hypocritical position in this respect, as it is forcing its trade partners such as Mexico to deal with freedom of association and the right to strike, while some US states do not want to abide by the rules of these conventions.

Conclusion Trade relations in the world in general and between the EU, the US and the PRC specifically have become more contested since 2016. Sustainability chapters in FTAs between the EU and the US and third parties are directly related to this development. In this more general sense one could qualify the ILS in sustainability chapters as a “sine qua non” of FTAs. Without such a chapter, civil society actors in the US and the EU would be against concluding FTAs. Some increased legalisation

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is present; trade relations remain nonetheless of a highly political nature. Precision and delegation have improved somewhat, but the discretion of the parties under the FTAs is still large. The low degree of obligation of such chapters is generally in line with the five principles Rodrik formulated at the end of the 1990s. Developed countries should be able to uphold their social-economic values and suspend trade advantages temporarily. Developed countries, however, should not impose their social-economic standards on others, especially developing countries. In the case of the USMCA treaty this imposition of some of the standards on Mexico has happened, though. In the EU, there is increasing resistance to weak sustainability chapters. In the Netherlands, for example, the social-democratic party changed its mind on ratification of the trade deal between the EU and Canada, CETA, mainly out of concern over a weak sustainability chapter. CETA is already provisionally applied. At the helm of the European Commission, the new president, Van der Leyen, plans to create the post of trade enforcement officer. A level playing field is going to be more important in trade relations. The level playing field is an argument also increasingly heard in the trade relations between the US and the EU with the PRC. Peaceful coexistence, words used by Rodrik quoted at the beginning of this chapter, is not self-evident anymore. A link between reciprocity and sustainability chapters could strengthen such chapters. If trade between two parties is not reciprocal, and when one party over time has a huge trade deficit with another party, increasing attention to the labour and environmental provisions in the FTA is to be expected. Reciprocity in trade concessions is also inherent in the basic principles of the GATT/WTO. So, why not also for FTAs? A focus on a combination of reciprocity and labour issues might lead to increased enforceability. Only focusing on norms and values through “cooperation” is not sufficient. Five-yearly evaluations of the results of an FTA are also necessary in this respect, to see whether the provisions of an FTA will have to be adapted. This process is inevitable in order to keep overall support for trade agreements. In this sense, ILS may be qualified as a “sine-qua-non” of modern trade relations and essential for the overall sustainability of the global trade architecture. The ILO regime and the ILS are promotional and flexible and therefore largely supported. Their use in free trade agreements is not uniform, though. Power relations between richer and poorer nations are increasingly involved. Whether their use in trade agreements with the US and the EU will lead to stronger multilateralisation or to what Helleiner and Pagliari (2011, p. 192) call, for the area of international financial regulation, “cooperative decentralization” is to be seen. A lot will depend on the involvement of the ILO supervisory committees in the evaluation of the trade agreements. These committees are sufficiently flexible to also fulfil Rodrik’s five principles of international trade.

References Abbott, K.W., Keohane, R.O., Moravcsik, A., Slaughter, A.-M. and Snidal, D. (2000) ‘The Concept of Legalization’, International Organization, 54(3), pp. 17–35.

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Alston, P. (2006) ‘“Core Labour Standards” and the Transformation of the International Labour Rights Regime’, in V.A. Leary and D. Warner (eds.), Social Issues, Globalisation and International Institutions, Labour Rights and the EU, ILO, OECD and WTO, Brill: Nijhoff, pp. 1–87. Bartels, L. (2013), ‘Human Rights and Sustainable Development Obligations in EU FTAs’, Legal Issues of Economic Integration, 40(4), pp. 297–314. Burfisher, M.E., Lambert, F. and Matheson, T. (2019) NAFTA to USMCA: What is Gained?, IMF Working Paper WP/19/73. Washington, DC: International Monetary Fund. Business Confidence Survey (2019) ‘The Voice of European Business in China’, 18 July 2019, available at Europeanchamber.com.cn Charnovitz, S. (2000) ‘The International Labour Organization in its Second Century’, in J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, (vol. 4, pp. 147–184). The Hague: Kluwer Law International. Cimino-Isaacs, C.D. (2020) ‘Labor Enforcement Issues in U.S. FTAs’, In Focus 10972, Congressional Research Service, available at https;//crsreports.congress.gov European Commission (2015) Trade for All. Towards a More Responsible Trade and investment Policy. Brussels: European Commission. European Commission (2021). Press release 25 January 2021: ‘Panel of Experts confirms the Republic of Korea is in breach of labour commitments under our trade agreement’. https://ec.europa.eu/commission/presscorner/detail/en/ip_21_203. (accessed 19 May 2022) Gravel, E. and Delpech, Q. (2013) The Comments of the ILO’s Supervisory Bodies: Usefulness in the Context of the Sanction-based Dimension of Labour Provisions in US Free Trade Agreements, ILO Research Paper no. 4, Geneva: ILO. Harrison, J., Barbu M. and Campling L. (2019) ‘Labour Standards Provisions in EU FTAs: Reflections on the European Commission’s Reform Agenda’, World Trade Review, Economics, Law, International Institutions, 18, p. 4. Helleiner, E. and Pagliari, S. (2011) ‘The End of an Era in International Financial Regulation? A Postcrisis Research Agenda’, International Organization 65, pp. 169–200. Herrnstadt, O.E. (2013) ‘Corporate Social Responsibility, International Framework Agreements and Changing Corporate Behavior in The Global Workplace’, Labor & Employment Law Forum, 3(2), pp. 263–277. Hoang, H.H. (2016) ‘Normative Power Europe through trade: Vietnamese perceptions’, International Relations, 30(2), pp. 1–30. Hughes, S. and Haworth, N. (2011) The International Labour Organisation. Coming in from the Cold. London: Global Institutions Series: Routledge. IMF (2018) World Economic Outlook 2018. Washington, DC: International Monetary Fund. Kennedy, D. (2016) A World of Struggle. How Power, Law, and Expertise Shape Global Political Economy. Princeton and Oxford: Princeton University Press. Langille, B.A. (2006) ‘Core Labour Rights: The True Story’, in V.A. Leary and D. Warner (eds.), Social Issues, Globalisation and International Institutions. Labour Rights and the EU, ILO, OECD and WTO, Brill: Nijhoff, pp. 89–124. Lo, C. (1990) The Reciprocity Principle in the International Regulation of Economic Relations. Nankang, Taipei: Monogrphs on American Legal Studies. Marceau, G. (2009) ‘Trade and Labour’, The Oxford Handbook of International Trade Law, available at https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199231928 .001.0001/oxfordhb-9780199231928-e-19

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Novitz, T. (2012) ‘The Committee of Experts and the Right to Strike: A Historical Perspective’, International Union Rights, 19(2), pp. 15–20. Raess, D., Dür, A. and Sadi, D. (2018) ‘Protecting Labor Rights in Preferential Trade Agreements: The Role of Trade Unions, Left Governments, and Skilled Labor’, Review of International Organizations, 13, pp. 143–162. Rodrik, D. (1999) ‘Five Simple Principles for World Trade’, Harvard University, available at https://sites.hks.harvard.edu/m-rcbg/research/d.rodrik_american.prospect_five.simple .principles.for.world.trade.pdf Rodrik, D. (2018) ‘What do Trade Agreements Really Do?’, Journal of Economic Perspectives, 32(2), pp. 73–90. Skrivankova, K. (2010) ‘Between Decent Work and Forced Labour: Examining the Continuum of Exploitation’, Joseph Rowntree Foundation, available at www.jrf.org.uk Tapiola, K. (2018) The Teeth of the ILO. The Impact of the 1998 ILO Declaration on Fundamental Principles and Rights at Work. International Labour Office, Fundamental Principles and Rights at Work Branch (FUNDAMENTALS). Geneva: ILO. Van Roozendaal, G. (2002) Trade Unions & Global Governance: The Debate on a Social Clause. London, New York: Continuum. Vidigal, G. (2020) ‘A Really Big Button That Doesn’t Do Anything? The Anti-NME Clause in US Trade Agreements Between Law and Geoeconomics’, Journal of International Economic Law, 23(1), pp. 45–64. Vogt, J.S. (2015) ‘The Evolution of Labor Rights and Trade: A Transatlantic Comparison and Lessons for the Transatlantic Trade and Investment Partnership’, Journal of International Economic law 18(4), pp. 827–860. WTO (1996) Singapore Ministerial Declaration, 13 December 1996. Geneva: WTO.

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A New Page for EU-China Energy Relations? The Impact of Trump’s Withdrawal from Paris Agreement on Cooperation and Competition in Energy Transition Yaroslava Marusyk As the winds of change blow, some people build walls, others build windmills.1

Introduction This chapter seeks to analyse new forms of climate change cooperation involving the US, the EU and China, and the challenges influencing their competition in renewables following the US withdrawal from the Paris Agreement under the four-year presidency of Donald Trump (2017–2021). By rethinking traditional multilateralism, it is argued that a new dynamic of climate cooperation that involves not only states but also sub-state and non-state actors is emerging. The EU-China partnership in mitigating climate change can be better understood through operationalisation of the concept of multilevel multilateralism. More precisely, this multilevel partnership incorporates entities above the state level (engaging the EU as a supranational institution), EU member states (intergovernmental level) and sub-state actors (city, company, NGO). On the basis of these different levels of analysis, the chapter proposes sets of favourable and disadvantageous factors that impact the implementation of the global climate obligations. The four-year de facto withdrawal from the Paris Agreement on the part of the United States has pushed a variety of actors to try to bridge this gap and thereby strengthened the multilateral setting of climate talks, in which China and the EU emerged as global leaders with aligned interests in fighting climate change and advancing energy transition. The analysis covers a number of issues and the most recent trends related to climate cooperation and competition in renewables between the EU and China, in the context of US inactivity, or even hostility, under the Trump administration. The first section focuses on expanding the concept of multilateralism by going beyond the state level, on the adoption of the Paris Agreement in 2015 and on the consequences for the EU and China of President Trump’s unilateral decision to leave this landmark agreement in 2017. The second section addresses three DOI: 10.4324/9781003167358-12

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resulting challenges of climate change cooperation between the EU and China, namely the absence of transatlantic cooperation, the impact of trade wars between China and the US and the obstacles to the coal phase-out process globally. The third section evaluates the role of state and non-state public actors in the EU-China climate partnership. Firstly, it critically assesses cooperation between China on one side and both the EU and its member states on the other, focusing mainly on the results achieved in the framework of the joint EU-China summits. Secondly, it discusses European and Chinese clean energy initiatives at the substate level, namely city-to-city cooperation, in the process of energy transition. This section concludes that a variety of multilevel partnerships strengthen the EU-China cooperation in the framework of the Paris Agreement and provide tangible results once concrete joint projects are being implemented. The fourth section has two subsections and focuses on challenges of market competition between the EU and China in the solar and wind power sectors and their sustainable connectivity cooperation. In the first subsection it is argued that the role of non-state actors that foster business-to-business connections is essential in moving the EU-China climate agenda forward. In addition, the positive role of information exchange and knowledge sharing between European and Chinese companies is acknowledged in driving the development of low-carbon technologies and decreasing the costs of producing renewable energy. The second subsection analyses EU-China sustainable connectivity cooperation, including sub-state urban projects on clean energy mobility in the framework of the Green Belt and Road Initiative (BRI) that was launched by the Chinese government in 2017. China’s plans for transcontinental electricity transmission supergrids are also mentioned in this section. The development of advanced clean energy grid technologies and ultra-high voltage lines can diminish electricity transmission losses over longer distances and is crucial for reducing greenhouse-gas emissions, thus helpful in view of fulfilling the targets of the Paris Agreement. The asymmetry of the new energy partnership between the US and China as a result of the US departure from the Paris Agreement is discussed in the last, fifth section. Asymmetric state/province-to-country cooperation on mitigating climate change is analysed by describing China-California climate partnership and other climate initiatives of US states since 2017. The concluding remarks summarise the role of multilateralism in climate action and reiterate the challenges that impact multilevel climate cooperation and competition in renewables between the EU and China. The US’s non-participation in combatting climate change had a limited impact on multilateral efforts of other major signatories of the Paris Agreement like the EU and China. At the same time, it offered new opportunities for non-state actors to develop and lead a multilevel climate partnership. The new modes of multilevel cooperation permitted not only the EU and China but also the US, through the initiatives of its states and cities, to contribute to the decarbonisation of the global economy, the reduction of the environmental footprint and the development of trade in innovative technologies for renewable energy sources.

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The Paris Agreement as a Multilateral Setting and the Departure of the US (2017–2021) The project that animates this edited volume starts from what could be called a “numerical” approach to multilateralism, by including a range of institutions in which more than two states cooperate and coordinate policies (see Introduction), but then focuses on qualitative aspects of multilateralism, in a Ruggiean sense. In exploring whether and to what extent there is normative agreement amongst old and new key players in some of the major multilateral institutions of present times, the book takes a largely state-centric approach to multilateralism. As the other chapters demonstrate, this can yield highly relevant insights, but it neglects that, in the course of time, new types of agents have started to play a role in multilateral fora, including non-state, sub-state and supranational actors. This does not mean we have to completely abandon a focus on states as core actors: Both supra- and sub-national governance entities are largely built by states and can therefore be regarded as “dependent agencies” of those states … These new sub- and supra-entities are knocking on the door of the multilateral system because they have a tendency to behave “as if” they were states. (Langenhove, van L. 2011) It is certain, however, that an arena that once belonged only to states now has to be shared with regional, sub-regional, sub-state and non-state actors. Conceptually, this is the point that this chapter is contributing to the project as a whole. Returning to the normative dimension, it is true that “multilateralism requires states to follow international norms and pay more respect to international institutions” (Tago 2017). This explains why many US policies under President Trump represented such a significant challenge to the multilateral order. Donald Trump, representing the Republican Party, came to power in January 2017, and immediately showed his disregard for multilateral norms and institutions by establishing preferences for bilateral deals in trade, and by taking unilateral actions to backtrack on US commitments in various international agreements. In June 2017 he announced a withdrawal of his country from the Paris Agreement (PA). This agreement was signed by governmental representatives from 197 countries at the 21st Conference of Parties (or “COP 21”) of the United Nations Framework Convention on Climate Change in Paris on 12 December 2015 and entered into force on 4 November 2016. Unlike in past proposals that failed, each signatory of the PA can set its own emission reduction targets, so-called Nationally Determined Contributions (NDCs), and pursue its own climate mitigation policies. During Trump’s term the US implemented energy policies that contradicted the Paris Agreement across the country. Thus, “the US government has sidelined itself and China has welcomed a natural partner in the EU” (James 2019). A number of experts have already addressed the history of the US nonparticipation in the process of climate change mitigation and the issue of Obama’s complicated legacy in driving the low-carbon economy agenda (Urpelainen &

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Van de Graaf 2017). They concluded that American non-cooperation in the Paris Agreement has roots in “particularities of the US political system, i.e. it is a structural problem” and creates risks for financing climate change mitigation efforts, as “it does not alter U.S. emissions” fundamentally. On the one hand, Trump’s decision to withdraw ultimately presented a threat for global climate cooperation. On the other hand, it provided opportunities for the EU, China, India and other emerging economies to become leaders in global climate policy. Poignantly, the US withdrawal became effective on 4 November 2020, one day after the US presidential elections in which Joseph Biden was elected as the 46th president of the United States. In 2021 President Biden renewed his nation’s commitments to multilateral efforts towards global climate agenda and in his executive orders pledged to return to “an irreversible path to achieve net-zero emissions, economy-wide, by not later than 2050” (Pinner & Rogers 2021, p. 2). Examining the trilateral energy dynamics between the US, China and the EU, it should be noted that they are the major energy consumers and energy transition pioneers. They account “for three quarters of total global investment in renewable energy in 2017,” meaning that investment in clean energy continues to be predominantly concentrated in these three places. According to the IRENA jobs database, “the bulk of renewable energy employment is in Asian countries, which accounted for 63% of jobs in 2019” (IRENA 2020, p. 20). China ranks first with 4,361,000 jobs in the renewable sector, the EU is second with 1,316,000 and the US comes fifth with 756,000 jobs in this sector (IRENA 2020, p. 20). As the institutional embodiment of global climate action, the Paris Agreement provides the necessary context in which the EU and China can fill the gap left by the US over the past four years, exercise their power and, upon mutual agreement, pursue shared goals in sustaining a multilateral approach to fighting climate change and multilateral institutions more in general. By launching the EU-China Energy Cooperation Platform (ECECP) in May 2019, the two global energy market leaders have committed to a shared vision on how to meet global climate change targets (Haddad 2019). This 3.5 million euro project is aimed at enhancing mutual trust between China and the EU. By strengthening its cooperation in climate change with China, the EU has been able to project its regional ownership of the climate action to a global level and to engage in the joint implementation of the Paris Agreement.

Understanding the Challenges of Climate Change Cooperation between the EU and China in a Multilateral Context This section addresses three main challenges that impact the EU-China climate change cooperation in a multilateral context, predominantly looking at the level of states and intergovernmental organisations, while the next sections of this chapter analyse the role of non-state actors and entities at the sub-state level. The first challenge is the absence of transatlantic cooperation on climate change, the second issue is transpacific trade wars (between the US and China) and the third

A New Page for EU-China Energy Relations? 171 issue is a slow process of coal phase-out globally that negatively affects climate action and disrupts a faster transition to renewables. Firstly, the construction of a “transatlantic cooperation bridge” on climate change has always encountered difficulties. Unlike Americans, “Europeans have not viewed climate change as a technological or an economic issue. They have viewed it as a matter of basic common-sense morality, politics, economics and culture” (Antholis 2009). The EU has been striving for leadership in building a global climate change regime for decades while the US caused a significant setback for global climate change cooperation by not ratifying the Kyoto Protocol.2 By vehemently denying climate science and claiming it to be a “hoax,” President Trump has led the US to unilaterally exit the Paris Agreement and thereby further weakened transatlantic climate cooperation. As a result, in the realm of climate change, the transatlantic alliance ceased to exist during Trump’s term (Cross 2018, p. 584). Secondly, since 2018 the intensifying trade war between the US and China has been casting “a shadow over international climate talks” (Jing 2018) and complicating climate change cooperation in the multilateral setting. Underlining the need to adhere to the principles of multilateralism and positioning itself as a leader in global climate action, “the Chinese government has warned that the collapse of normal trading conditions between the United States and China is putting at risk global efforts to limit global warming” (Fernyhough 2019). Thirdly, the EU-China climate commitments can hit roadblocks unless both actors promote the phase-out of coal in order to curb carbon emissions globally. Some EU member states have still not agreed to phase out coal-fired power plants domestically and China has still been financing their construction around the world, including in Europe (for example in the Balkan states, Greece and Romania). The EU-China alignment in climate change mitigation has also suffered from the actions taken by the Czech Republic, Estonia, Hungary and Poland to block a new climate strategy for 2050 at the EU Council in June 2019. Their position contributed to slowing down the climate change mitigation efforts because these countries tend to protect the interests of the fossil fuels industries since their economies remain heavily dependent on them. For example, Poland relies on coal for 80% of its production of electricity. The most polluting coal power plant in Europe is the Bełchatów power station located in southern Poland; it emits 37.18 million tons of CO2 per year (in 2013). It was ranked the number one climate-damaging thermal power plant in the EU (Gutmann et al. 2014). China’s energy production, despite the stated intentions, has also been dominated by coal power plants. Its investing companies, with governmental support, are looking for opportunities in the coal sector abroad. Beijing is “involved in more than a hundred coal-fired power plant projects in active planning or construction phases” around the world (Aggarwal 2017). China Development Bank and China Export-Import Bank are “major funding sources of coal- and other fossil-based energy supply” (Quitzow et al. 2019, p. 7). It has been argued by some climate activists that Trump’s “climate U-turn” in 2017 (Farand 2019c) has removed incentives for China to curb its carbon

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emissions and revealed the limits of European efforts to compel China, the biggest environmental polluter (and the world’s largest emitter of greenhouse gases), to ramp up climate change mitigation. So the question was whether the EU was still able to use its trade deals with China effectively as leverage in the global fight against climate change. Thus, in the absence of US leadership, proponents of climate action believed that China needed further impetus from the EU as its sustainable energy partner (Farand 2019b). Following the US decision to return to the Paris Agreement, in April 2021 the Chinese government announced its decision to start phasing out coal from 2026 in order to reduce carbon emissions. President Xi Jinping pledged “to bring China’s emissions to a peak before 2030 and make the country ‘carbon neutral’ by 2060” (Stanway & Cadell 2021). Summing up, this section addressed three main challenges that influence climate change multilateralism between the EU and China. The transatlantic climate alliance was absent during the Trump era and its potential was curbed as a result of the US withdrawal from the PA. Next, continuing US-China trade wars jeopardised the establishment of an international carbon market and, lastly, continuing investments in coal-fired power plants by China and the reliance on coal production in some EU member states curtailed the potential for state-level cooperation on climate change. Despite these obstacles, a multilevel multilateral dynamic has been developing due to the increasing participation of non-state and sub-state actors in jointly driving the global climate governance, i.e. cities, provinces, mayors, firms and NGOs.

A New Page of Energy Partnership: State and Non-State Public Actors in the EU-China Climate Change Mitigation Process This section focuses on the EU and China as pivotal players on state and sub-state levels in global climate policy, in particular in terms of their joint urban initiatives. Further, it critically evaluates the progress of transition towards renewables under their leadership, the emergence of a new form of energy partnership and “a global normative shift” by examining these new patterns of cooperation. Climate Change Cooperation between China, the EU and Its Member States The determination of the EU and China to tackle climate change dates back to 2005 when both actors agreed upon a Partnership on Climate Change in which they declared their cooperation on “zero-emissions” advanced coal technology based on “carbon dioxide capture and geological storage” (European Commission 2005). This Partnership also promoted other clean energy sources, including renewables, energy efficiency and conservation and placed climate action at the centre of China-EU relations. The two sides confirmed the need to further accelerate climate-resilient development at their annual joint summits, like for example in 2018: “The Paris Agreement is proof that with shared political will and mutual trust, multilateralism can succeed in building fair and effective solutions

A New Page for EU-China Energy Relations? 173 to the most critical global problems of our time” (European Council, EU-China Leaders’ Statement on Climate Change and Clean Energy 2018, point 6). This high-level political framework of the 2005 Partnership was further enhanced with joint statements in 2010, 2015 and 2018 (European Commission 2018a). However, it needs to be acknowledged that EU-China joint statements mostly serve as documents of intentions, and are of a declarative nature, and proclaiming long-standing partnership does not necessarily result in the implementation of specific projects. The EU-China Summit scheduled to take place in September 2020, where climate change was the major agenda topic, was postponed as well as the COP 26 UN climate summit in Glasgow due to the Covid-19 pandemic. The coronavirus recovery may provide an opportunity for the EU and China “to craft a ‘green partnership’ focused less on specific emission targets” but on speeding up the transition to a decarbonising global economy and on finding agreement to direct investments towards low-carbon energy production. Both could be major pillars of a prospective EU-China climate deal. EU-China climate talks focus on “developing international standards for sustainable finance” as well as “greening supply chains, revamping biodiversity frameworks” and cooperation on green investments in developing countries, especially on the African continent (Waldholz 2020). The last pre-pandemic EU-China Summit took place in April 2019 and assured the commitments of both parties to multilateralism, the 2030 Agenda on Sustainable Development and the EU-China Energy Dialogue. It also endorsed the establishment of the EU-China Energy Cooperation Platform (ECECP). While underlining their compliance with the Paris Agreement, both sides expressed the need for “carbon pricing and fossil fuel subsidy reform” and further cooperation on green finance (European Council, EU-China Summit Joint Statement 2019, p. 5). Furthermore, while visiting France in March 2019, President Xi Jinping agreed with his French counterpart Emmanuel Macron on mobilising finances and carbon pricing to meet the goals of the Paris Agreement. The business deals struck between the two countries included “a Chinese order for 300 Airbus planes, as well as renewable energy, gas and transport infrastructure contracts” (Darby 2019). Further, both countries called for upholding multilateralism in combatting climate change jointly and strengthening the climate plan. The European Green Deal adopted in 2019 defined a roadmap for Europe to be the first climate-neutral continent in 30 years. It involves all sectors of the economy, “notably transport, energy, agriculture, buildings, and industries such as steel, cement, ICT, textiles and chemicals” (European Commission 2019). As “a part of the EU’s post-pandemic response,” European leaders endorsed green transition and green policies at the EU summit in March 2020 (Simon 2020). In order to transform the political commitment to decarbonising all sectors of the economy into a legal obligation, the European Climate Law was agreed upon by member states in April 2021. The EU will reduce carbon emissions by “at least 55% compared to levels in 1990” (European Commission 2021). By stepping up its action to demonstrate its global climate leadership, the EU aims to develop the

174 Yaroslava Marusyk clean circular economy “where there are no net emissions of greenhouse gases in 2050 and where economic growth is decoupled from resource use” (European Commission 2020). The sub-regionalisation of China-EU relations, especially in Central and Eastern Europe (CEE) through the 17 + 1 multilateral dialogue, and the phenomenon of multi-layered multilateralism have been the subject of previous academic research. The EU as a supranational entity is being challenged by these geopolitical developments, and there is concern that China might use a “divide and rule” approach to “undermine the integrity of the EU” (Jakobowski 2018, pp. 668–669). Another perspective defines cooperation between China and the EU as multi-layered multilateralism with “three distinct levels of interactions – regional, sub-regional and bilateral” (Song, Pavlicevic 2019, p. 277). China’s multidimensional approach then aims “to increase the value of ‘16 + 1’ to CEE countries, develop the sense of ownership by maximizing opportunities available to individual countries.” According to the authors, in this way China hopes to be viewed by the EU “as a positive contributor to the region, rather than a threat” (Song, Pavlicevic 2018, p. 300). Summing up on cooperation at the level of member states and the abovestate EU level, it is evident that the multilateral political landscape is shifting in recent years as Chinese and European visions on global climate action are progressively aligning, a development that has been under way for more than a decade, with or without American participation in mitigating climate change. Despite certain setbacks in some joint projects (in particular on carbon capture and storage), overall EU-China cooperation on decarbonising the global economy has opened a new page of energy partnership by demonstrating their commitment towards multilateralism and exercising leadership in the implementation of the Paris Agreement globally. Cooperation in mitigating climate change and trade in renewables has better prospects between the EU and China than between China and the US, not least because they do not view each other as security and military rivals. Thus, two main insights can be drawn from this section. First, China-EU climate cooperation goes back to the 2005 Partnership on Climate Change, with various developments since then. Second, China-EU cooperation has been developing a particular multilevel structure, including for example the 16/17 + 1 format, but also bilateral engagement between China and individual member states. The next section will demonstrate that this cooperation has gone even further, becoming of a multi-layered nature. It covers EU-China multilevel and multilateral climate action and demonstrates the decisive role of European and Chinese urban initiatives in promoting the low-carbon global economy. EU-China City-to-City Cooperation for a Low-Carbon Global Economy Twenty years ago, prominent global governance scholar James Rosenau, while writing about gloomy perspectives for sustainable development and lack of clarity about how “authority gets exercised in a decentralised world” (Rosenau 2003, p.

A New Page for EU-China Energy Relations? 175 11), cited a book by Hilary French, an advisor to the UN Environment Programme. She stated that “reversing ecological decline in the early decades of the new century will require innovative partnerships between many different actors, including NGOs, businesses, governments, and international organizations” (French 2000, p. 164). Rosenau was concerned about the contrast between the speedy proliferation of environmental regimes between 1985 and 1997 and the low level of compliance with global environmental treaties. He argued that the humanity is “still deeply ensconced in a paradigm that locates authority exclusively in states and environmental challenges exclusively in their shared problems” (Rosenau 2003, p. 28). In line with Rosenau and French, this section emphasises the crucial role of sub-state actors and argues that climate-friendly urbanisation can be achieved only if cities are involved as main actors of this process. Rapid urban growth resulted in consumption-based emissions. According to the global environmental network C40 Cities, 7% of cities are impacted by various consequences of climate change like flooding, rising sea levels or dangerous storms in coastal urban areas (C40 Cities 2021). Therefore, cities as centres of financial and human (intellectual, social) capital are main drivers in reducing greenhouse-gas emissions. The Partnership on Urbanisation as an open political platform between the EU and China was established in 2012. Its reports, predictably, outline mostly positive dimensions of joint urban climate action that contributed to the development of “sustainable and low-carbon Chinese cities” and provided “business opportunities for European companies as well as ushering closer city-level sub-national ties” (China-EU Energy Cooperation Roadmap (CEECR) 2020, p. 15) Cooperation in sustainable urban growth has indeed intensified in the past years, as visible in the implementation of many concrete projects. For example, in 2017 Urban EU-China was launched as an innovation platform on sustainable urbanisation in order to strengthen “coupling between city-level, national, and supra-national programmes, planning, policies, and projects” (Urban EU-China 2020). This partnership has been “pioneering a new type of relations” (CEECR, 2020, p. 14) and become one of the main institutional mechanisms of EU-China cooperation. It established the annual Urbanisation Forum and the Mayors’ Forum, which launched new approaches in the process of transitioning to a global low-carbon economy. The EU-China Mayors Charter was signed in Brussels in 2012 in order to exchange best practices between Chinese and European cities, thus redefining traditional state cooperation in energy and offering a new instrument for EU-China relations. Under this framework 12 city pairs signed cooperation agreements on developing low-carbon cities, smart cities, new-energy cities, lowcarbon planning, green cities and urban mobility, providing “innovative delivery mechanisms of the Partnership” (CEECR 2020, p. 15). China is one of the most important partners in terms of sustainable urban development and climate change mitigation under the framework of the International Urban Cooperation programme (IUC) that is funded by the EU. This programme consists of three main components, namely city-to-city cooperation on sustainable urban development, sub-national action under the Global Covenant of Mayors Initiative and inter-regional cooperation on innovation for local and regional

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development. For example, since 2020 Rome (Italy) and Liuzhou (China) have both been working on adapting the concept of the “sponge city” and “smart city” while scaling up “on issues of rainwater/flooding and ground permeability” in their contexts of high levels of urbanisation (International Urban Cooperation 2020). Both cities are studying measures to build urban drainage systems and construct new green city spaces (Kotlker et al. 2020, p. 13). In order to achieve the goals of the Paris Agreement, the Sustainable Development Goals and the Urban Agenda, this platform provides city pairings in order to develop sustainable urban policy, promote green “smart cities,” reduce carbon emissions and guarantee access to clean and affordable sources of energy for urban residents. Aside from the EU-China framework for city cooperation, member states have taken similar initiatives vis-à-vis China. The most prominent example is the SinoGerman Urbanisation Partnership that has provided dialogue for sustainable cities since 2013 and is funded by the International Climate Initiative (IKI) of the German Ministry for the Environment, Nature Conservation and Nuclear Safety. Its mission is to tackle issues related to the “rising rates of urbanisation, a higher frequency of climate change-induced natural disasters and increasing levels of environmental degradation.”3 For example, in 2019 governmental officials from Tianjin visited the Ruhr area, namely Essen, Bottrop, Duisburg and Herten, to learn more about the transformations that took place after the decline of coal and steel industries there. Currently, the Ruhr area is promoting the use of renewable energies and successfully dealing with re-training former miners’ families for the services industries. In Herten, the largest former coal mining town in Europe, hydrogen filling stations for fuel-cell powered electric vehicles were built to ensure innovative solutions for the transport and storage problem of the renewable sources of energy (Sino-German Dialogue for Sustainable Cities 2019). Specifically, fuel cell technology may be combined with the production of green hydrogen via wind power electrolysis, which contributes to reducing carbon emissions. Starting from 2021, Linde Engineering, a global engineering company, is developing high-performance green hydrogen fuelling stations in Herten that will primarily be used to supply both public and private transportation vehicles (Linde Engineering 2021). Thus, city-to-city cooperation provides a new mode of interlinked state and sub-state cooperation in the context of climate cooperation between the EU and China. This is embedded in multilateral mechanisms that progressively move beyond states and tend to include more and more actors at multiple levels. It supports the realisation of concrete urban projects, ensures a variety of partnership forms and strengthens cooperation under the Paris Agreement as a multilateral setting. The next section will now turn to other new initiatives in the context of the PA and the broader China-EU climate change partnership, with special attention to the role of businesses.

EU-China Competition vs Cooperation The focus on new modes of jointly combatting climate change does not mean that cooperation is always harmonious and free of tension. This section will

A New Page for EU-China Energy Relations? 177 highlight competitive dynamics amidst cooperative efforts in two contexts. First it briefly analyses business-to-business cooperation between Chinese and European companies in the wind and solar power sectors and discusses the challenges of competition. The second subsection then focuses on EU-China cooperation approaches to sustainable connectivity and the Green Belt and Road Initiative. Solar and Wind Power Sectors Transitioning to renewables, especially solar and wind energy, presents new technological opportunities in tackling climate change. Global climate action is closely linked to the development, trade, deployment and consumption of renewables. China plays a key role in developing low-carbon energy technologies, has the most extensive high-speed rail network and is the biggest producer of solar panels and wind turbines in the world. Its investments into the renewables infrastructure are higher than those of the EU and the US combined. Collaboration with China as a global leader in the mass production of low-carbon energy technologies is important for the European renewables industry. Owing to China’s investments, technologies that are necessary to meet climate change targets have become cheaper and can now compete with fossil fuels on the energy markets (Helveston & Nahm 2019). Thus, this section briefly analyses how businesses, as another type of non-state actors, contribute to international cooperation on climate change in the context of multilevel multilateralism. It focuses on two challenges that characterise EU-China competition and cooperation in renewables, as well as the tensions and opportunities this implies in the context of their global climate partnership. Firstly, the main challenge that Chinese wind and solar energy industries face domestically is not the deployment of renewables and installing new capacity, but the need to ramp up the consumption of electricity produced from renewable energy. China is an unquestionable leader in manufacturing renewable technologies “with wind power capacity accounting for one third of the world’s total and PV [photovoltaic] power capacity accounting for one fourth” (Renewable Energy World 2019). However, coal remains a main source of electricity production in China and the use of clean energy must be increased in order to fulfil its global climate obligations. Furthermore, while China reports impressive statistics about installation and planned renewables capacity, it still has “a far less sophisticated energy system … horrible levels of curtailment, terrible yields (capacity factors) compared with other (European) wind and solar farms and un-integrated, un-competitive, provincially segregated energy system” (James 2019).4 Thus, the consumption of electricity from clean energy sources needs to be increased in order to meet the climate targets, which would also multiply business opportunities, both for Chinese and European firms. The second challenge that characterises EU-China business competition and cooperation in renewables is about mutually beneficial interdependencies in doing business and about creating opportunities for best practice sharing and knowledge exchange in the process of energy transition. Looking at how German and

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Chinese companies shaped the global solar PV market, Quitzow argues that “a set of dynamic and mutual inter-dependencies between an industrialized country (i.e. Germany) and an emerging economy (i.e. China) have driven development and diffusion of technology in the field” (Quitzow 2015, p. 127). Chinese and German competitors enabled the dynamic market growth of solar PV and contributed to industry expansion. Describing cross-country interdependencies, the scholar underlines that “Chinese industrial development was facilitated not only by the profits generated in Germany, but by important inflows of knowledge and finance. German equipment suppliers played a central role in transferring state of the art equipment and related know how.” While Quitzow calls such processes “cross-country interdependencies or transnational linkages” (Quitzow 2015, pp. 138–139), these processes could be also viewed as cooperation or interdependencies between non-state actors – corporations (Chinese pioneer firms, German equipment suppliers), citizens (consumers), R&D centres and cities. The role of a central government (Chinese or German) is no longer paramount when energy transformation stimulates the decentralisation of energy systems. Thus, the network-like nature of multilevel multilateralism is also supported by interdependencies in the business sector between China and the EU. Meanwhile, European solar panel and wind turbine manufacturers face challenges in staying competitive on the market. In the framework of the EU-China Energy Cooperation Platform (ECECP), launched in 2019, there are calls for reciprocity and the creation of a level playing field between European and Chinese companies in renewables: “no special advantages, merely parity of opportunity for Chinese and EU firms in either market” (James 2019). Similar to the aforementioned analysis of solar PV dynamics, an earlier study on cooperation and competition in the wind power sector found that Chinese and European industries have developed distinct models of competition and cooperation, and that it would be too simplistic to describe green technology trade and investment relations in terms of winners and losers only (Lema et al. 2011, p. 35). In the past, the European wind energy market was dominated by Spanish, German and Dutch firms. However, this situation is changing as Chinese firms are expanding and “the competition will intensify as Chinese firms manage to throw in different price equations, consortia models and financing options” (Lema et al. 2011, p. 36). According to the scholars, it remains to be seen whether lower costs of wind turbines will drive competition in innovation, or whether the firms will compete on the basis of quality. Further, the cooperation platform ECECP provides opportunities for European companies to share best practices of cooperation amongst transmission system operators (TSOs), like the European Network of TSOs – Electricity (ENTSO-E), and the European Network of TSOs for Gas (ENTSOG),5 and explore possibilities for joint TSO organisations with China. They have sufficient experience with the type of “network sophistication (codes, smart grid, cross-border exchange-based trading etc.) necessary to take advantage of efficient, intermittent renewables at scale” (James 2019). This knowledge sharing will help the Chinese energy sector to deal with the need to integrate cross-provincial energy systems. Currently the grid

A New Page for EU-China Energy Relations? 179 is partitioned and the majority of solar and wind farms are deployed in the North and the West of the country. Closer EU-China ties, that are now institutionalised in ECECP, promise to contribute to growing energy partnership and may help to turn commitments into actions despite disagreements, competition in trade and other setbacks. It is important to acknowledge that in the past two decades both Chinese and European (mostly German) companies benefitted from cooperation in the solar and wind power sectors, driving the development of the low-carbon energy technologies further and creating conditions for using clean energy to mitigate climate change. Overall, China is trying to achieve its strategic goal of developing new markets for its solar and wind industries, especially in the developed countries. Sub-state and non-state cooperation is essential in sustaining the leading role of the EU and China in the global climate change arena. The involvement of interest groups, non-profit NGOs and for-profit business actors in the renewables sector contributes to creating equal and fair market conditions for European firms in China and overall benefits a dynamic network of energy relations and climate partnership between China and the EU. Despite existing trade rivalry and competition between solar panels and wind turbines producers, if China and the EU aim to fulfil their climate obligations, not only the EU but also China must commit to reaching net zero greenhouse emissions by 2050 (not by 2060) and further embrace their multilevel multilateral cooperation, now with the renewed commitments on the part of the United States as well. Thus, this section has further illustrated the multilevel nature of climate cooperation, between the EU and China, in multilateral settings as well. It involves not only above-state, state and city levels of cooperation but also businesses, as another type of non-state actors, and business-to-business connections. Sustainable Connectivity in the Framework of the Green BRI This section evaluates the approaches to sustainable connectivity implemented by the EU and China. The Belt and Road Initiative (BRI) and, in particular, Green BRI, is analysed in terms of the EU-China sub-state level cooperation on green urban mobility and construction of giant electricity supergrids. I will show that these projects are developed in accordance with the EU’s and China’s climate obligations under the Paris Agreement. The BRI as China’s global infrastructure development and international cooperation strategy was launched by China’s President Xi Jinping in 2013. This ambitious project consists of two trade routes, notably the Silk Road Economic Belt (by land) and Maritime Silk Road (by sea), covering more than 70 countries, incorporating about US$1 trillion in investments and engaging about 65% of the world’s population (EBRD BRI 2020). Starting from 2017, in the context of the 21st-century “New Silk Road,” China has placed more and more emphasis on the Green Belt and Road Initiative based on “ecological civilization philosophy,” sustainable development and environmental protection concepts.6 It aims to significantly reduce the risks of environmental

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pollution and climate change by reducing costs for the production of renewable energy and stimulating global investments in solar photovoltaics and wind power energy. Following the launch of the BRI, the EU-China Connectivity Platform was established in 2015 in order to find synergies between China’s approach to connectivity via the BRI and the EU’s policy, including the Trans-European Transport Network (TEN-T). The main goal of this platform is to achieve “greater transparency, reciprocity in market access and a level playing field for businesses in the area of transport infrastructure development” (EU-China Connectivity Platform 2020). Thus, by enhancing “regulatory quality and level playing field of connectivity” via this framework of cooperation, the EU aims to “strengthen regional order and focus on multilateral approaches to connectivity” (Mohan 2018, p. 5). As an important trading and investment partner for China, the EU has proposed a number of projects for Green BRI that include “sustainable urban transport, sustainable urbanization and sustainable industrialization.” Both China and the EU agree on the need to achieve a transition to green mobility that runs on sustainable energies (electricity, hydrogen) in the cities along the BRI route in order to successfully mitigate climate change. In 2019 the BRI International Green Development Coalition was launched by the Chinese Ministry of Ecology and Environment in order to develop green transport, green finance (that entails renewable energy investments), agriculture, green standards and innovations (Green BRI 2019). The European Commission is a partner of the Green BRI Center which was founded also in 2019 in Beijing. Hence, Green BRI is closely related to the Paris Agreement climate targets and provides one more framework for institutionalised cooperation between the EU and China in the multilateral setting of the PA. Besides clean energy transport systems, transcontinental transmission infrastructure and sustainable grid connectivity7 constitute one of the main strategic goals for the Green BRI in which solar PV can play a decisive role. “Less than 4% of the maximum solar potential of the region could meet the BRI’s electricity demand for 2030” (ScienceDaily 2019). This growing potential of renewables for the planet’s largest electricity grid connectivity was highlighted by the International Renewable Energy Agency (IRENA). “China is at the forefront of the energy revolution … The initiative … can also expand electricity markets to countries with extremely high renewable energy potential, including those in Central Asia” (IRENA 2017). In order to implement the Paris Agreement, it is crucial to install “as much as 2,000 GW of interconnection capacity … for enough renewables to be deployed” before 2050 (IRENA 2017). In 2015 the Global Energy Interconnection (GEI) initiative was established by Liu Zhenya, chairman of the State Grid Corporation of China. It is the largest utility company in the world and can “potentially ship electricity from Beijing to Bangkok” (Temple 2018). Stretching for 37,000 km and covering 88% of China’s territory, it is estimated that its ultra-high voltage lines can transmit an output of 150 gigawatts of electricity, which is equivalent to the production capability of

A New Page for EU-China Energy Relations? 181 150 nuclear reactors. This giant electricity network has over 1 billion customers and about 1 million employees. It can connect electricity systems of neighbouring countries into “transcontinental ‘supergrids’ capable of swapping energy across borders and oceans,” thus demonstrating China’s “rising global ambitions” (Temple 2018). It is notable that at the beginning of developing this giant transmission grid, the State Grid collaborated with European companies (ABB from Sweden and Siemens from Germany). However, over time it has developed its own expertise in power transmission technology that allows the supply of renewable energy to be balanced in predominantly the Northern and Western provinces with increasing electricity demand in highly populated urban Eastern provinces of China. Furthermore, this giant electricity grid is able to provide a constant supply across different time zones and to address the intermittency problem of renewables by rotating the use of solar, wind, geothermal or hydroelectric energy. Why is supergrid connectivity for electricity transmission important for the multilateral setting of the Paris Agreement? Foremost, it would allow greenhousegas emissions to be significantly reduced along the BRI route via advanced clean energy grid technologies and newly built ultra-high voltage lines that can diminish electricity transmission losses over longer distances. Additionally, by steadily increasing the amount of renewable energy use, China can showcase its leadership on climate change, thus adhering to its commitments. To conclude, on the business-to-business level this section briefly analysed cooperation and competition challenges of Chinese and European firms that are operating in the wind and solar power sectors. On the above-state level, the EU is committed to collaborating with China on the sustainable connectivity projects in the framework of the Green BRI. The sustainable connectivity projects implemented by the EU and China’s Green BRI are constitutive pillars of lowering greenhouse-gas emissions and fulfilling targets set out multilaterally by the Paris Agreement. The following section discusses how, despite Trump’s decision to isolate his country from climate action and the Paris Agreement’s commitments, a new form of energy partnership between the US and China continued to address the challenges of carrying forward climate change.

Asymmetric Cooperation on Climate Change Mitigation: The Example of the US and China Although US-China cooperation on mitigating climate change following Trump’s decision to pull out of the Paris Agreement is not the main topic of this chapter, it is extremely useful to examine the role of American sub-state and non-state actors in global climate governance as it shows the emergence of new forms of energy cooperation beyond national borders. Thus, this section focuses on asymmetric forms of climate partnership as a result of Trump’s energy policy. One of the direct consequences of the US departure from the Paris Agreement is the adoption of the declaration “We Are Still In” signed by city mayors,

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business leaders, university presidents and governors of a number of American states in June 2017. The document has over 3,500 signatories from all 50 states, and points out that the climate actions of non-state actors, such as cities, universities, small and big business enterprises (Apple, Google, Tesla, eBay, Adidas, Facebook, Nike and others), religious communities and cultural institutions, represent “a constituency of more than half of all Americans, and taken together, they represent $6.2 trillion, a bigger economy than any nation other than the U.S. or China.”8 The members of the network believe that what is good for the environment, can also be good for business (Perkins 2017). Another sub-national climate action initiative that was launched in response to the US withdrawal from the PA was the Vermont Climate Pledge Coalition. The state of Vermont has pledged, together with a group of municipal, business and non-profit partners from across the state, to continue implementing the national and state climate goals set by the US in the Paris Agreement, namely “a 26–28% reduction in greenhouse gas emissions by 2025 from 2005 levels” (Vermont Climate Pledge Coalition 2018). This network has set the goal of covering “90% of Vermont’s energy needs from renewable sources while virtually eliminating reliance on oil” by 2050.9 However, it remains to be seen what will be the results of these advocacy campaigns and whether they do not only have declarative nature, with the primary goal to show protest and disagreement with the Trump administration’s energy policy. The same month “We Are Still In” was launched, in June 2017, China and California signed a deal re-committing to work on climate change, thus bypassing the federal government’s decision. Trump’s course constitutes nothing but a “a temporary setback,” in the words of California’s governor Jerry Brown (Guardian 2017). California and China are not a surprising climate diplomacy tandem because China is the world’s second-biggest economy and California, counted as a separate economy, would be in the fifth place after the US, China, Japan and Germany. The governor of California has promised to Xie Zhenhua, China’s special representative for climate change, “to keep working on developing lowcarbon technologies and markets together” (Guardian 2017). But the China-California climate partnership goes back further, and it has developed on the basis of commercial ties and the expanding markets for solar and wind energy technologies. It was in 2015 under the Obama administration that the “US-China Governors’ Accord on Clean Energy and Economic Development” was signed by the governors of California, Nevada, Michigan, Oregon, Iowa, Washington and different Chinese provinces (thus symmetric, unlike the 2017 deal between California and China). First and foremost, the agreement promoted “trade and investment supporting the commercialization and deployment of renewable energy and clean technologies” (US-China Governors’ Accord 2015). It contributed to developing export opportunities for Californian clean-technology companies. Even though the US has been driving “innovations in electric cars, renewable power and other sectors of the industry,” the country has not been a global leader in the development of a clean energy agenda, not even before Trump’s energy

A New Page for EU-China Energy Relations? 183 policy favouring coal and oil industries. However, “California, with the largest economy of any U.S. state, as well as some of the strictest climate controls, has been at the forefront of the sector” (Brown 2017), and it is well-placed to benefit from further cooperation with China. At the same time there is little to gain for the US from protectionism and unilateralism in this field, as “US clean-technology tariffs, support for sunset industries and retrenchment from climate negotiations will do little to combat Beijing’s growing influence in emerging renewable-energy markets” (Reynolds 2018). The intention of this section was to show that climate diplomacy moved from the state to the sub-state level, fuelled also by business ties between certain American states and Chinese provinces in the development of trade in renewables and including even asymmetric state-to-sub-state cooperation. The sub-state and non-state actors are involved in mitigating the impact of climate change and in the deployment of renewables, despite the policies of the Trump administration, which aimed at prolonging the existence of domestic coal-fired power plants, coal mining and oil industries.

Conclusion The retreat of the Trump administration from the Paris Agreement and withdrawal from the process of global climate change mitigation is yet another example of the turn from multilateralism to unilateralism in US foreign policy. While the United States under Trump has been withdrawing from multilateral organisations, China has continued to enhance its engagement in such institutions. The election of Qu Dongyu in 2019 as the first Chinese director-general of the Food and Agriculture Organization (FAO), the UN’s largest technical agency, is a recent example that illustrates this trend (Farand 2019a). The main findings of this chapter are the following. Firstly, China and the EU stepped in after the US left the PA. This situation provided more opportunities to develop bilateral cooperation that filled the gap left by the US and created leeway for the EU and China to become leaders in global climate diplomacy. Secondly, their example shows the importance of the sub-state level of cooperation for multilateralism in climate change. Thirdly, the asymmetric US-China cooperation further underlines the relevance of the sub-state level, in some cases even against formal positions of a national government. Furthermore, multilevel climate partnerships (involving sub-state and non-state actors) between the US and other PA participants reveal that the official policies of the US government are of less effect than many would expect. As a result, the impact on the implementation of the PA climate targets remained relatively limited. The global fight against climate change is a particular realm where the interests and visions of the EU and China are aligned. Both actors believe in the irreparable consequences of global warming, pollution, arctic ice loss and, therefore, the urgent need to transition to clean energy systems. A coordinated EU-China engagement in a far-ranging global climate policy contributes to implementing

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the PA targets on the global scale. Returning to the conceptual points proposed in the introduction to this volume, this might suggest that in the realm of climate change there can be a high level of agreement amongst core players. Interestingly though, this has not translated into ordering principles that are binding on states, but rather a minimally binding multilateral agreement in the classical sense, that has enabled a broad network of non-state actors to interact, promote the fight against climate change and also put pressure on state governments. The retreat of the US under Trump demonstrates the challenges of “multipolar multilateralism,” in which a set of (older and newer) dominant players engage with each other on the basis of norms and principles that every one of them adheres to. At the same time, the dynamics of multilevel multilateralism also imply that multipolar agreement is not necessarily indispensable, at least not in all fields. After the US government voluntarily stepped aside, rejecting values on which the Paris Agreement was built, the EU and China were able to develop a new model of multilateralism in climate change mitigation. This would suggest that multilateralism is not in danger, even if a single core player retreats temporarily. Instead, multilateralism is evolving. In the realm of climate change it has come to include a variety of non-state actors that play an ever growing and more and more decisive role in driving forward the global climate agenda. European and Chinese cities, corporations and consumers have shown that transnational cooperation amongst non-state actors can efficiently contribute to the process of energy transition and a global low-carbon economy. By involving non-state actors, the EU and China are building a new form of energy partnership and offering multilateral solutions on the global scale. Admittedly, there are a number of obstacles and challenges, mentioned in this chapter, which complicate multilevel climate partnership. Among others, there are the US-China trade wars; the absence of transatlantic climate cooperation during Trump’s term; the divergence of interests in mitigating climate change among certain EU members (Poland, Czech Republic, etc.); the EU-China trade competition in solar and wind production and challenges of creating transparency and a level playing field for business; China’s continued investments in coal power plants in developing countries and uncertainties related to global economy recovery plans after the Covid-19 pandemic. The potential for unparalleled electricity grid connectivity in the framework of the Green Belt and Road Initiative might be impeded by a number of factors ranging from geopolitical concerns and environmental consequences to continuing investments in coal mining and postpandemic growth problems for the world economy. Also, there are plenty of other contentious issues between the EU and China that complicate cooperation but are beyond the scope of this chapter, like longterm disagreements on trade, confrontation launched by the US against Chinese company Huawei being chosen as a 5G infrastructure supplier in the EU, human rights issues and the recent escalation on the status of Hong Kong. It remains to be seen whether the EU and China will be able to sustain their climate leadership and multilevel partnership among a global post-pandemic economic recession, growing trade competition tensions and geopolitical and security concerns.

A New Page for EU-China Energy Relations? 185 At present, the EU and China continue to remain allies in the sphere of climate change mitigation. The role of the EU is crucial in providing impetus for China to become more energy efficient and to curb its carbon emissions. China supports the Paris Agreement, as an existing multilateral structure, does not attempt to modify it and continues to adhere to the NDCs by cutting carbon dioxide emissions as declared. In the post-Covid-19 recovery period, the global energy transition and implementation of the Paris Agreement will be significantly influenced by the ability of China to further invest in renewable versus carbon-intensive industries (Gosens & Jotzo 2020, p. 250). The liberal international order has been beneficial for China as it could realise its trade potential as a world leading exporter of lowcarbon energy technologies, including solar panels, electric vehicles and batteries. In this context, China clearly does not play the role of a revisionist power because it benefits from the global trade in renewables. Multilevel climate cooperation between the EU and China also demonstrates that China is likely to support the existing order, at least in the framework of the PA. The US retreat created political and business opportunities for the EU and China to become global sustainability leaders and competitors in clean energy innovations by further expanding their markets for solar and wind energy technologies. However, the multilevel nature of cooperation under the multilateral PA allowed for sub-state entities in the US to keep the momentum of climate change measures despite the official policies of the Trump administration. By analysing triangular interaction between the EU, China and the US in the multilateral setting of the Paris Agreement, this chapter has shown that multilevel cooperation, involving states and non-/sub-state actors, contributes to the implementation of climate goals while national sovereignty issues are becoming less important. Hence, a new form of energy partnership emerged as a result of increasing non-/sub-state cooperation between the EU and China and due to their shared sense of obligation to reduce the global carbon footprint. Doubtlessly, the Biden administration’s decision to re-join the Paris Agreement, re-committing to the NDCs and aspiring for net zero emissions by no later than 2050, strengthens multilateral efforts to mitigate climate change and re-establishes trilateral dynamics of cooperation and competition in clean energy technologies between the EU, China and the United States. But the uncertainties of US domestic politics may have less impact on the global efforts at mitigating climate change than many observers feared initially.

Notes 1 Chinese proverb (2013) ‘Chinese Culture: Ancient Chinese Proverbs’. 1 June. Available at: http://www.vincequek.com/2013/06/chinese-culture-ancient-chinese-proverbs.html 2 The Kyoto Protocol, aiming at reducing greenhouse-gas emissions and introducing an international emissions trading scheme, was signed in 1997 and entered into force in 2005. The total number of the states-signatories is 84. The EU ratified the treaty in 2002 while the US Bush administration refused to ratify it after the Clinton administration signed the Kyoto Protocol in 1998.

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3 See ‘Sino-German Dialogue for Sustainable Cities’, available at https://www .sustainable-urbanisation.org/en/about 4 The term “curtailment” is related to the oversupply of energy generated by solar panels (during the days with strong sunshine) and by wind turbines (on very windy days). “Curtailment is the reduction of output of a renewable resource below what it could have otherwise produced. It is calculated by subtracting the energy that was actually produced from the amount of electricity forecasted to be generated” (California ISO). Among other solutions, storage technologies and self-scheduled cuts of energy generation could potentially address the problem and minimise the oversupply. 5 There are 42 electricity transmission system operators (TSOs) from 35 European countries and together they form the ENTSO-E. This network was established in 2009 in order to liberalise the gas and electricity markets in the EU. The set-up of the Internal Energy Market entails support for the climate agenda and integration of renewables into the EU’s energy systems. Available at: https://www.entsoe.eu/about /inside-entsoe/objectives/. ENTSOG was established to enhance the functioning of European gas markets and optimise cooperation between national gas TSOs. Available at: https://www.entsog.eu/about-entsog 6 See ‘Guidance on Promoting Green Belt and Road’, available at https://mp.weixin.qq .com/s/Ee0kwbOjUVfcDjYccl41BQ 7 According to the Green BRI Center, sustainable infrastructure connectivity means “the free flow of goods, people, services, technologies, ideas and other elements among regions by tightening regional connection at the construction phase.” It includes transportation (road, railway, airport, port), energy (oil and gas pipelines, power grids) and telecommunication (cross-border fiber-optic cable, broadband) and institutional connections, such as policy frameworks and standards (Wang 2019). 8 See ‘We Are Still In’, available at https://www.wearestillin.com/about 9 See ‘Vermont Climate Pledge Coalition’, available at http://vermontclimatepledge.org/

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Part 3

Multilateralism and Regional Security

10 All Dressed up with Nowhere to Go The ASEAN Regional Forum, Major Power Disinterest and the Limits of Multilateral Security Cooperation in East Asia Ja Ian Chong Introduction Envisioned in the 1990s as a multilateral means to engage all actors with active security interests in Southeast Asia – including the United States (US) and China – the Association of Southeast Asian Nations (ASEAN) Regional Forum (ARF) now seems very much like an organisation without direction. A range of other organisations and arrangements have taken on key roles originally intended for the ARF. The East Asia Summit (EAS) now seems to be the premier multilateral forum for top leaders to meet over Asia-related matters, while the ASEAN Defence Ministers’ Meeting Plus (ADMM+) appears to make explicit provisions for military confidence-building (ASEAN 2006b, 2007, 2017). Other mini-laterals seem to give states active in the region platforms for interaction over everything from joint naval patrols to non-traditional security issues such as counter-terrorism, human trafficking and humanitarian assistance and disaster relief (HADR) with little to do with the ARF (Chheang 2019; Gulang 2017). Apart from not having much of an effect on regular interaction over security issues among regional states, the ARF also plays a limited role in addressing points of contention and difference in East Asia. At the height of tensions over the South China Sea between 2010 and 2017, virtually no regional actor paid attention to the ARF as a mechanism for confidence-building and preventive diplomacy, much less for an “elaboration of approaches to conflicts” (Bureau of Political-Military Affairs 1995, point 6.2). Likewise, when tensions between Cambodia and Thailand over Preah Vihear in 2008 and 2011 resulted in crossborder exchange of fire between troops of the two sides, no party invoked any of the ARF processes (Turcsányi & Kříž 2016; International Crisis Group 2011). The same was true of tensions between Thailand and Myanmar over armed Kachin groups operating across their shared border that resulted in clashes in 2001 (Aglionby 2001; Anonymous 2000). The ARF, therefore, seems to have little or no prominence in actually helping to manage tensions in East Asia despite its lofty goals and regular meetings. This chapter examines the limited development of the ARF despite the initial high expectations and considers the implications for institutionalised multilateral cooperation on security in Northeast and Southeast Asia. Specifically, I argue that DOI: 10.4324/9781003167358-14

194 Ja Ian Chong the disinterest of the two major powers most active in the region – the United States and China – coupled with hesitance among ASEAN members about departing from the “ASEAN Way” constrained the ARF’s potential for development. Instead, there was a preference for mini-laterals that were far less ambitious and more limited in scope, features that lowered the stakes for participation and made them more consistent with ASEAN’s focus on coordination rather than collective action under ARF. The piecemeal, issue-specific mini-lateral approach meant that specific goals spelt out for cooperation were easier to attain, but also meant far less coordination and comprehensiveness in broader regional approaches to security challenges. Consequently, the active management of major security issues, such as major power rivalry and disputes over the East and South China Seas, tends to exclude smaller and medium-sized actors in the region alongside non-Southeast Asian ARF members like the European Union (EU), Japan, India and Russia. The next section looks at the original aims and aspirations of the ARF, since that is the baseline against which I measure its performance. Such an approach takes success of the ARF on its own terms by using standards its own members laid out from the outset. A third section examines areas where the ARF has fallen short. Next, I offer explanations for the limitations of the ARF as it sought to develop standing as a regional organisation and address key alternative accounts. The conclusion discusses the implications that follow from the ARF’s limited success and the concurrent rise of mini-laterals as the preferred approach to dealing with security issues that arise in East Asia, especially those with a multilateral flavour. I also propose some possible policy alternatives given the limited effectiveness of the ARF and the pervasiveness of mini-laterals in light of persistent and growing security needs in East Asia going forward.

The Great Hope ASEAN launched the ARF with great fanfare in 1994. Touting the success of the multilateral “ASEAN Way” of consensus, non-intervention and mutual respect for autonomy in navigating Southeast Asia through the tumult of the Cold War, the then-six ASEAN members wanted to expand this approach to actively managing regional security beyond ASEAN itself (Bureau of Political-Military Affairs 1995, pp. 3–4 & 7–11). Indeed, ASEAN has always had security relevance in that it helped to ensure stability by preventing conflict among its formerly rivalrous members, which in turn enabled its members to prosper economically and become middle- or high-income economies (Acharya 2012). Moreover, the grouping also limited overt Cold War confrontation among the United States, the Soviet Union and the People’s Republic of China (PRC) in Southeast Asia and even worked with Washington and Beijing to force an end to Vietnam’s occupation of Cambodia (Acharya 2012). Based on the rationale that what was good for ASEAN was also good for all of East Asia, ASEAN members at the time decided to propose an ASEAN-based approach to managing the region’s problems even as the grouping contemplated membership expansion.

All Dressed up with Nowhere to Go 195 At the point of creation, the ARF had the explicit goal of being a platform for explicitly discussing and managing security challenges in both Southeast and Northeast Asia. This position was supposed to be a clarification and improvement on ASEAN’s long-time stance of performing the role of a security and political grouping without specifically stating this purpose (Ball & Acharya 1999). Consequently, the ARF involved all states active in Northeast and Southeast Asia, including those whose home territories lay outside the area, notably the United States, Australia, India and New Zealand. Despite the wide regional importance of cross-Strait differences between Beijing and Taipei, Taiwan was excluded from the ARF at the PRC’s insistence (Le Thu 2019a). Contact among ARF members and Taiwan could still occur through ancillary arrangements, primarily the Council for Security Cooperation in the Asia-Pacific (CSCAP) but also the Asia-Pacific Economic Cooperation (APEC) forum in which Taipei participates (Center for Strategic and International Studies 2020; Garnault 1999, pp. 5, 10). Given Europe’s longstanding economic engagement in Southeast Asia, ASEAN member states also incorporated the EU within the ARF at its founding in 1994. Europe had been an ASEAN dialogue partner since 1977 through the European Community and maintained significant economic ties with the region prior to joining the ARF. Collectively, the EU is ASEAN’s second largest trading partner and largest source of foreign direct investment as well as a promoter of ASEAN sustainable development. The two regional organisations started negotiations towards a free trade agreement (FTA) in 2007, but by 2009 the strategy shifted to agreements between the EU and individual ASEAN members. So far, Brussels has been able to conclude FTAs with Singapore and Vietnam, while negotiations with Indonesia and the Philippines are ongoing (European External Action Service 2019). On security, the EU acceded to ASEAN’s Treaty of Amity and Cooperation in 2012 while consistently supporting ASEAN’s humanitarian efforts and backing high-level dialogues on such issues as counter-terrorism, maritime security and transnational crime. However, overall collaborative EU-ASEAN efforts over security tend to have less prominence, reflecting the fact that Brussels is far more of an economic than a security player in Asia (European External Action Service 2019). The EU’s orientation is broadly reflective of European states’ general shift away from security engagement and toward economic cooperation in Asia following de-colonisation. Even as it kept the foundational principles of the “ASEAN Way,” the ARF included three major innovations that were supposed to provide the pillars of its work and represent “stages” of progression for the new arrangement. The first of these was confidence-building (Bureau of Political-Military Affairs 1995, p. 8; ASEAN 2001, pp. 213–216; ASEAN 2004, p. 348–349). Starting the ARF project with confidence-building signalled a belief that a key problem for security in East Asia, especially among states, was a lack of understanding and trust. Confidence-building measures (CBMs) such as meetings, conferences and workshops like the annual Asia-Pacific Senior Military Officers’ workshop in Singapore aimed to bring top policy-makers and practitioners together for dialogue and exchange (Rajaratnam School of International Studies 2019). Their

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goal was to have military, diplomatic and political leaders get to know each other to develop trust and mutual rapport that would discourage second-guessing and worst-case thinking in the event of crises. ARF proponents hoped that such contact could lower suspicions and tension in East Asia from the Kamchatka peninsula to Papua. With sufficient confidence in each other’s absence of ill-intent, the sponsors of the ARF hoped that the grouping could move to the next task – preventive diplomacy. Behind preventive diplomacy was a view that ARF members could act to prevent crises from escalating whenever they occurred by providing a platform for discussion and dialogue among key policy-makers (Ball & Acharya 1999). By slowing down any crisis situation, the aim of preventive diplomacy was for the ARF to pre-emptively identify areas of tension. Members of the group could then begin speaking with the various sides contesting an issue in order to manage differences and to prevent these debates from heating up politically in the involved states. According to the initial thinking about the ARF, preventive diplomacy supposedly works best by taking the most overtly contested areas of difference off the table and away from public attention so they do not fuel domestic tensions and hostilities in ways that prevent compromise (Ball & Acharya 1999). At the third stage of ARF’s development stood conflict resolution. This was the most ambitious goal of the ARF project. Conflict resolution meant giving the ARF an ability to solve conflicts and disputes among members and other governments either from or active in East Asia (Bureau of Political-Military Affairs 1995, p. 8). The ARF’s organisation includes an Expert/Eminent Persons group that would be able to speak with the various disputants and seek a mutually agreed compromise agreement to a dispute (Bureau of Political-Military Affairs 2000, p. 160; ASEAN 2006, pp. 439–441). In short, the ARF wanted to provide East Asia with an indigenous, third-party mechanism for not just arbitrating but also managing and solving conflicts as well as disputes. In so doing, the ARF sought to defuse tensions and find mutually acceptable solutions among members and those active in the region. Such a move, if successful, has the potential to significantly reduce the likelihood of conflict among ARF members and in East Asia more broadly.

Unfulfilled Promise Despite the lofty ambitions of the ARF, it has remained largely a talk shop in the almost quarter century since its founding. The signature activities for the ARF surround ministerial meetings over security and foreign affairs as well as a leaders’ summit. As much as these are relatively high-profile events, their main function appears to be nothing more than fostering the exchange of information and mutual familiarity among participating governments. Few practical approaches to managing common security concerns seem to have resulted from these ARF meetings. ARF ministerial meetings are themselves increasingly overshadowed by heads of state and heads of government meetings that take place under the auspices of APEC forum and the newer EAS.

All Dressed up with Nowhere to Go 197 New initiatives and functional cooperation seem to stem from arrangements other than the ARF. The George W. Bush administration used the 2001 APEC leaders’ summit – ostensibly an economic framework – to launch cooperation on counter-terrorism after the September 11 terror attacks on the United States (Government Publishing Office 2001, pp. 1277–1278). Practical security cooperation took shape as governments in the region sought to address specific issues through ad hoc initiatives outside of the ARF, joint anti-piracy patrols among littoral states in the Malacca Strait and the Sulu Sea being two examples (Soeriaatmadja and Arshad 2016). Other platforms seem preferable as starting points for multilateral cooperation, such as the ADMM+, which launched military-to-military HADR exercises and anti-human trafficking initiatives (Teo and Singh 2016). Regional states, including ARF members, seem reluctant to call on the grouping to address crises and points of longstanding friction, and this despite the fact the ARF’s original ambit includes, at a minimum, the sponsorship of confidence-building measures and eventually preventive diplomacy and dispute resolution. Addressing North Korea’s nuclear and missile programme relied first on the Six-Party-Talks mechanism and eventually bilateral meetings between Pyongyang and other key players, rather than the ARF – despite membership of all parties (Council on Foreign Relations 2020). Likewise, neither Thailand nor Cambodia sought assistance through the ARF in their dispute over the Preah Vihear temple complex nor did Thailand and Myanmar go through the ARF when faced with cross-border artillery engagements (Turcsányi & Kříž 2016, pp. 83–109; International Crisis Group 2011). Yet, all parties mentioned above are ARF members. The various participants in ongoing disputes over territories in the East China and South China Seas appeared to make no effort to use the ARF either. ARF member states seemed readier to call on third-party arbitration outside the ARF than look to the grouping, as in the cases of Indonesia-Malaysia and MalaysiaSingapore maritime disputes as well as the Philippines approach to the South China Sea (International Court of Justice 2002 & 2008; Permanent Court of Arbitration 2016). Disputants relied on mechanisms such as the International Court of Justice (ICJ) and, in the case of the Philippines, the arbitral tribunal process under the United Nations Convention on the Law of the Sea (UNCLOS). Discussions over these disputes took place among the different claimants and, in the case of the South China Sea, the context of ASEAN, when it came to means to contain frictions (Koga 2018). US involvement in these disputes was visible in discussion over the Code for Unplanned Encounters at Sea (CUES) and demonstrations of Washington’s active interest through Freedom of Navigation Operations (FONOPS) (Berkofsky 2018). In the face of intensifying friction between the United States and China, starting from the end of the first decade of the 21st century, the ARF as a group has remained largely silent even if there have been strong responses by individual members. The notable exception was during the 2010 ARF meeting in Hanoi, where several ASEAN foreign ministers criticised what their governments saw

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as excessive efforts by the PRC to pursue its maritime claims in the South China Sea (Ruwitch & Ahuja 2010). Otherwise, the ARF as a collective body seem to avoid addressing US-China tensions despite its public goals of confidencebuilding, preventive diplomacy and conflict resolution. Whatever responses to the increasingly complicated relations between Washington and Beijing appear to occur, they mostly come from individual member states only, rather than with or through the ARF. Member states almost appear to avoid the ARF when trying to handle the challenges of contemporary US-China competition. Malaysia, the Philippines and Vietnam made submissions to the United Nations Commission on the Limits of the Continental Shelf that disputed Beijing’s claims in 2012, while the Philippines pursued international arbitration to determine the basis of the PRC’s claims (United Nations Division for Ocean Affairs and the Law of the Sea 2011 & 2012; Permanent Court of Arbitration 2016). ARF members in Asia, by and large, kept silent on US freedom of navigation operations, while Australia and several European states conducted similar operations of their own. Indonesia takes it upon itself to respond with limited force toward what it deems PRC encroachment on its Exclusive Economic Zone (Schonhardt & Rachman 2016; Hendartyo 2020). Australia, India and Japan are partnering with the United States on its proposed Free and Open Indo-Pacific strategy, while other ARF members continue security cooperation with the United States, even as they participate in China’s Belt and Road Initiative as individual states (United States Department of State 2019; ASEAN 2019a). In short, the ARF does not feature significantly in the calculations and policies of ARF members when it comes to handling the most important major power bilateral relationship at present – that of the US and PRC. All this while, the ARF remained practically dormant apart from its usual meeting schedule. If ARF members tried more active ways to manage security concerns, they did so through alternatives to the forum. Any contribution to regional security by the ARF probably lies in confidence-building at its most basic. The meetings and interactions through the ARF at most gave governments additional knowledge about interlocutors that helped provide the confidence for engagement in other fora. The ARF’s limited contribution to security in Northeast and Southeast Asia raises two puzzles: why did the organisation fall short of its original aims, and why do member states continue to engage through the ARF despite its many shortcomings? The next section seeks to address these two questions.

Avoiding Aversions over Collective Action The absence of more substantive cooperation on security issues through the ARF – the arrangement’s original purpose – rests on a lack of interest on the part of major powers and an institutional design primed for coordination rather than initiative. As a consequence, the ARF is neither institutionally prepared for a more active role in regional security matters, nor does it receive the necessary attention. The institutional design of the ARF better suits the addressing of

All Dressed up with Nowhere to Go 199 so-called “common aversions” among members rather than taking the initiative when member interests diverge, which is often the case with contentious security issues. A conspicuous gap exists over the handling of issues that involve collective action, in particular cooperation and commitment. The fact that the ARF receives little encouragement to become more active or to reform translates into an organisation with a correspondingly small role even after a quarter of a century. Efforts at security cooperation must address a series of challenges relating to collective action (Axelrod 2006; Olson 1971). They include information problems where insufficient or wrong information creates erroneous perceptions that stymie cooperation or lead to suboptimal decisions. There are coordination problems where actors have shared outcomes that they all wish to avoid, but face difficulties in finding the joint action that enables them to avert such results. Then there are collective action problems of various sorts, which have in common that different actors can all stand to benefit from working together collectively. However, different distributions of cost and risk or other considerations detract from the willingness to cooperate, leading the various actors to actually be worse off. Most importantly, in a situation with commitment problems the inability of potential partners to credibly demonstrate that they will not renege on promises they make prevents cooperation. Assuming that information problems are at least partially surmountable, a first set of obstacles in security cooperation are coordination problems, or problems of common aversion, when there are outcomes that all actors involved would like to avoid. To a certain extent the ARF appears institutionally ready to address this sort of problem. Member states need to agree on an approach, possibly among several options, that enables them to avert undesired outcomes. Finding a situation where both drivers swerve in a game of chicken or deciding on which side of the road to drive are classic examples of coordination problems. Confidence-building and preventive diplomacy under the ARF framework aim to help members avoid an escalation of conflict, an outcome all members presumably wish to avert. As the first two stages in the development of the ARF, they do not get into matters of dispute resolution that involve more collective action tasks pertaining to the distribution of gains, losses and risk (Ball & Acharya 1999). Overcoming commitment problems that may affect cooperation demands actors maintain policy positions despite some substantive risk or immediate cost. Like ASEAN, on which its rules are based, the ARF privileges the autonomy of member states above all, as seen in its insistence on consensus decision-making, its emphasis on strict non-intervention and the absence of enforcement mechanisms. This institutional design means that the ARF is unable to stop any member from reneging on a decision or seeking alternative arrangements that circumvent or even undermine collective decisions. As a result, cooperation depends on voluntary action that relies on continued congruence of interest and a general avoidance of issues that are domestically sensitive for the sitting administration of all member states. Members can renege on promises at little cost should an agreement entered into earlier become inconvenient, and other members have few

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options to enforce continued adherence. The restrictiveness of these conditions can present significant obstacles to cooperation. To date the ARF’s experience demonstrates limited interest in managing even some of the more critical coordination problems, for which it should be institutionally prepared, much less the other types of challenges to cooperation, like in particular commitment problems. Major power members of the ARF, including China, India, Japan, Russia and the United States, tend not to involve the grouping in their differences. The ARF appears to play hardly any meaningful role in actively ameliorating or mitigating points of major power friction, be it over the Senkaku/Diaoyutai or artificial island construction and freedom of navigation. Given that the ARF depends largely on member states’ voluntarily referring issues to the grouping and the ability of any member to block discussion by breaking consensus, silence over major power action is unsurprising (Bureau of Political-Military Affairs 2002, pp. 12–19). Such behaviour is also in keeping with major power proclivities to prioritise their own autonomy of action over institutional restraint against which the ARF has no recourse – as an institution the ARF can do little to restrain major powers and has no record for doing so. Major power participation in the ARF seems limited to using it as a platform to showcase a desire for engagement in East Asia and the Indian Ocean. Head of state and senior official appearances at ARF events and repeated deference to “ASEAN centrality” or keeping “ASEAN in the driver’s seat” seem to provide little actual restraint on contention among major powers, be they between the United States and China or between Japan and China (Acharya 2017; Jones 2010). The growing tensions between the United States and China on a host of issues from trade to maritime access and support for friends and allies are a case in point – the ARF seems to play no clear role (Teng & Emmers 2011). Partners of ASEAN, including extra-regional ARF members like the EU, should be aware of the increasingly serious divisions within ASEAN, even if they are not complicit in this development (Cook 2018; Limaye 2017). Deference to ASEAN norms appears to be a means to avoid alienating other ARF members by mollifying them through flattery, a move that prevents serious falling out but does little for substantively advancing cooperation. ASEAN members of the ARF appear satisfied with the forum largely providing a basis for dealing with common aversions of secondary import. The ARF continues to adhere to the ASEAN approach to organising non-interference, respect for autonomy and consensus decision-making outlined in the Bangkok Declaration, Bali Concords, Treaty of Amity and Corporation and ASEAN Charter that define the “ASEAN Way” (ASEAN 1967 & 1976). These principles were helpful to coordinate a small group of authoritarian states that faced similar challenges from communism, internal resistance and economic development. The ARF and ASEAN today and the ARF have members with a range of regime types, levels of economic development and security challenges that often diverge. Just as economic needs for ARF members vary, security concerns and political considerations diverge, an obvious example being South China Sea disputants, littoral and maritime states and those with a mainland focus.

All Dressed up with Nowhere to Go 201 The “ASEAN Way” along with increased diversity among ASEAN members and across the ARF creates a tendency for the organisation to focus on the lowest common denominator. The “ASEAN Way” of moving at a pace comfortable for the least willing partner helps to establish a basis for cooperation (Johnston 1999). But today’s more divergent ASEAN would no longer be able to mount the type of sustained political and diplomatic campaign as that adopted between 1979 and 1989 to counter Vietnam’s invasion and occupation of Cambodia, which eventually prompted Hanoi to withdraw. Without more decisive ASEAN leadership, the ARF is less able to take initiative on difficult issues such as far-reaching institutional reform. The ARF, after all, functions by having ASEAN in the “driver’s seat,” to have “ASEAN centrality” (Acharya 2017). Cooperation tends to be over less critical and less ambitious issues that are generally uncontentious but also bring less substantive changes to the region. A result of continued orientation toward addressing common aversions that present “lower hanging fruit” is a relative lack of attention to the host of collective action and especially commitment problems that affect regional security. ARF members have made largely limited and piecemeal progress toward improving transparency and communication among each other. Military confidence-building among some ARF members exists as largely tactical exercises and some sharing of maritime safety information through the ADMM+ and Singapore-based Information Fusion Centre (IFC) (Singapore Ministry of Defence 2019). Efforts to invest in the organisation’s ability to systematically build trust or make credible commitments toward the ARF’s objectives of confidence-building, preventive diplomacy and conflict resolution are not evident. Tellingly, sustained attempts to work on a South China Sea Code of Conduct and address tensions relating to North Korea’s nuclear programme all occur outside ARF frameworks despite their fit within the grouping’s purview (Goh 2017).

A Shadow over Regional Security Underdevelopment of the ARF brings real costs and creates tangible risks for security in the East Asian and Indian Ocean regions. Regional states have fewer alternatives with which to buffer the effects of US-China competition. Less institutionalisation of the ARF means that mechanisms to address mutual differences and to dampen major power friction are weaker, limiting the options for regional states to “not choose sides” and pushing them instead to align either with China or with the US. A proliferation of mini-laterals as a response to the absence of a broader regional framework for security cooperation may only be a second-best solution. The narrower scope for mini-laterals can spell higher transaction costs for participants given the need to coordinate among different issue-areas and partners and still result in key issues receiving less sustained attention than desirable. One reaction to the absence of a more fully functioning ARF is the establishment of mini-laterals to meet the demand for security cooperation, but such initiatives bring with them questions about coordination and reach.

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Mini-laterals are cooperative efforts that include multiple parties that focus on very particular issues and can involve a subset of members from a larger multilateral arrangement (Patrick 2015). There are multiple initiatives across East Asia and the Indian Ocean that involve ARF members in this regard, ranging from human trafficking to cross-border crime, piracy, maritime safety and humanitarian assistance and disaster relief (Ganasagaran 2018; NilssonWright 2017; Wuthnow 2019). Such efforts are helpful in building understanding and establishing a degree of comfort among tactical level operators, but do not address the larger questions of strategic trust and broader coordination among different states. Mini-laterals, by design, generally do not provide the overall shared sense of direction and communication among top, state-level decisionmakers to address more fundamental issues such as managing major power friction or territorial disputes. The more cautious, incremental approach to regional security cooperation under the ARF framework may have worked in the 1990s and early 2000s but it looks less appropriate for contemporary times. Today’s East Asia and Indian Ocean regions see growing tensions between the richest and most capable states active in these areas, particularly the United States and China (Campbell & Sullivan 2019). Accompanying this phenomenon are rivalries between China and India, China and Japan, as well as Russia and the United States, which also implicate their various allies and partners (Grossman 2018). Even though the European Union is not as prominent a security player in East Asia, it has an enduring interest in regional stability and is not entangled in major power rivalries in the region. Nonetheless, the absence of an active regional institution renders it difficult for the EU to bring to fruition its clear, even-handed set of rules for external action, which might have a stabilising effect on regional affairs in Southeast and Northeast Asia. Being able to navigate competitive forces in Asia while maintaining autonomy for non-major powers requires the assistance of regional frameworks that mitigate the most contentious, risky and potentially escalatory forms of state behaviour. Relying on minimally coordinated mini-laterals and the ARF, itself centred on an increasingly discordant and possibly rudderless ASEAN, does not provide the mechanisms the region needs to dampen more dangerous aspects of major power rivalry (Patrick 2015). A less robust and active ARF undermines regional states’ ability to “not choose sides” among major powers, notably Washington and Beijing. Navigating a middle course between major powers rests on either significant overlap in the interests of other states in the region, or institutions that can buffer the negative effects of major power rivalry. Differences from trade to currency manipulation, naval access and freedom of navigation, rule of law and international order, positions on Taiwan and North Korea and military modernisation demonstrate increasingly divergent US-China interests (Campbell & Sullivan 2019). The intensification of tensions among various other major powers active in East Asia and the Indian Ocean indicates that the extent of overlapping interests among regional states in the face of major power rivalry is shrinking. These conditions raise the relative significance to regional security and stability of frameworks that allow non-major

All Dressed up with Nowhere to Go 203 powers to raise concerns collectively and encourage substantive major power dialogue that reduces the need for disruptive behaviour. The presence of regional organisations that can effectively manage key differences and promote cooperation on difficult issues without being beholden to any major power can help reduce friction from major power rivalries. Reducing the contentiousness of key issues means fewer areas for major powers to compete and try to marginalise each other over. To the extent that stakeholders see such arrangements for handling regional issues as legitimate, the cost of attempts to undermine or upend them rises, even for powerful actors. Reducing the incentive for overt major power competition helps pave the way for more stability, certainty and predictability. Successful regional mechanisms further provide medium-sized and smaller regional actors with voice opportunities and some ability to take initiative through established rules and procedures, creating conditions for them to “not choose sides” or develop their own options, if that is what they prefer (Ikenberry 2000, pp. 50–79). In many respects, this ability to pursue alternatives independently from the United States, Russia and China is what the European Union offers its members. However, the ARF at present remains unable to fulfil its promise of being this sort of mechanism for moderation and a platform for non-major powers to voice concerns together. Neither ARF meetings and summits nor the various minilaterals that include ARF members seem to be blunting the rise in increasingly sharp competition among major powers, especially the United States and China. Exacerbating the situation, divisiveness within ASEAN is growing, in part fuelled by Beijing trying to prevent the grouping from becoming an obstacle to the realisation of its expansive claims over the South China Sea (Le Thu 2019b). With the ARF relying on ASEAN centrality and on having ASEAN in the “driver’s seat,” the ARF currently appears to revolve around a group of states that seem unable or unwilling to provide clearer direction, even for their own broader, long-term interests (Limaye 2017; Teng & Emmers 2011). This results in a degraded ability of regional states to resist pressure from major powers and shield themselves from major power competition, an outcome that seems to be already unfolding in the East Asia and Indian Ocean regions. Under-institutionalisation of the ARF and other regional frameworks also risks exacerbating major power competition. The ability of regional states to articulate and follow through with credible common positions through an institution like the ARF would reduce uncertainty for major powers, not least by allowing regional actors to avoid involvement in major power rivalries. This was arguably where ASEAN was relatively successful during the Cold War, and follow-on arrangements like the ARF tried to replicate this success (Bureau of Political-Military Affairs 1994, pp. 3–4; 1995, pp. 7–11). The diversity of national positions about what “not choosing sides” means amongst both ASEAN and ARF members increases uncertainty and the incentive for competition over regional allies. For instance, when formal US allies like South Korea, Thailand and the Philippines do not choose sides, this raises questions over whether Beijing and Washington should compete harder for their loyalties, including through local interference (Teng 2018).

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Conclusion An ARF that demonstrates less direction due to chronic under-investment by members can inadvertently and ironically contribute to the kind of regional instability and insecurity it was established to dampen. The forum neither provides mechanisms for ameliorating more serious distrust and uncertainty nor an outlet for non-major powers to collectively voice their concerns and act to reduce major power tensions at this juncture. Most confidence-building initiatives seem to be farmed out to minimally coordinated or even uncoordinated efforts whose broader effects remain unclear. Such conditions are especially worrisome given the impression that the ARF has become a flashy arena where leaders raise high expectations of regional cooperation but with few practical results to show. The situation for the ARF is unlikely to improve since regional actors seem unwilling to forego any autonomy, even if this is needed to achieve collective gains, while Washington and Beijing appear disinterested in multilateral structures that constrain their freedom of action. Moreover, existing mini-lateral initiatives seem to draw the enthusiasm of member states away from engaging with ARF frameworks and mechanisms more directly. Within the context of this volume, the ARF’s trajectory exemplifies the risks multilateral institutions face if they fail to develop any generalised principles of conduct that enable more robust cooperation projects to take off. The “ASEAN Way” could be counted as such, but with its focus on avoiding infringements on sovereignty it remains essentially limited to the idea of addressing common aversions rather than developing institutional mechanisms for the provision of public goods. The persistence of commitment problems also means that even loose reciprocity cannot necessarily be taken for granted amongst ARF members. As a result, we observe a multilateral institution that has become to a large extent a diplomatic forum for finding pragmatic ad hoc solutions. Interestingly, this situation is not the result of normative competition amongst core players, but at least in part due to great power neglect. Neither the US, as the preeminent security actor, nor a rising China appear eager to promote, defend or contest any particular ideas or cooperative schemes in this setting, tending instead to disregard it almost entirely. The EU, by contrast, finds it difficult to play much of a security role, given the considerable distance from its home region and in the absence of a strong regional counterpart organisation. Should there be interest in reviving the ARF to make it a more effective tool for managing tensions and even major power contestation in the Asia-Pacific and Indian Ocean regions, a useful starting point would be to redefine and focus on a mission. This includes clarifying how the ARF relates to and works with various initiatives that emerged since its founding, including mini-laterals and arrangements like the “ASEAN Outlook on the Indo-Pacific” ironically launched at the 2019 ARF meeting, but with no clear connection to this broader framework (ASEAN 2019b). A possibility may be for the ARF to work on increasing transparency regarding the various national military and paramilitary organisations active in the region, including navies, coast guards, air forces and maritime

All Dressed up with Nowhere to Go 205 militia. Another option may be to turn the ARF into a platform for discussing existing cooperative frameworks with an eye to de-conflicting these initiatives and reducing redundancies. These moves can help reduce miscalculation in contentious areas like the South China Sea by expanding the ARF’s extant but limited capacity for coordination to support collaborative efforts, such as developing a meaningful, stable and equitable Code of Conduct. Nonetheless, the emergence of a more effective ARF does not appear likely for the foreseeable future. There is little political will to reform. Highly competitive major powers are likely to prefer weaker regional arrangements lest they overly restrain or complicate efforts to challenge rivals. Smaller and medium-sized actors seem wary of action that can invite pushback from others, including major powers, while also having little political appetite to pay the cost of overcoming more serious coordination and collective action problems even if that seems feasible. As a result, the ARF will most probably continue to be quiescent and even become more marginal as tensions rise in East Asia resulting from intensified US-China competition. In avoiding the short-term difficulties, challenges and complications of ARF reform, smaller and medium-sized member states have become complicit in fostering the increased pressure they must now face. Given its less active role within the ARF and over security in Asia, the European Union has a limited ability, little pressing reason and modest political will to encourage and shepherd ARF reform even if such an outcome can benefit both Europe and Asia over the long term. As a component of the so-called multilateral “rules-based order” in Asia, the ARF’s ability to function as advertised – or not – contributes to the robustness of this set of institutional arrangements. Perhaps the ARF’s limitations – and, by extension, those of ASEAN – reflect a malaise afflicting multilateralism more broadly, be it over the environment or the global economy, and in both global settings, like the United Nations, and in regional arrangements, like the European Union. Key challenges facing the ARF, at a time when there is more pressure than before and such an organisation is more important than ever, are not a result of some sudden shock, but rather a longer-term absence of concerted attention by members. ARF action and inaction affect friction and stability in the AsiaPacific and Indian Ocean regions, even if incrementally, and its present weakness means regional states are less able to actively temper growing US-China tensions. Unless regional actors suddenly overcome their collective action and commitment problems, their previous, more laissez faire approach toward the ARF means they should brace for more intense US-China rivalry with fewer policy options available.

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All Dressed up with Nowhere to Go 207 Bureau of Political-Military Affairs (1994) ‘Chairman’s Statement, the First ASEAN Regional Forum, Bangkok, Thailand, 25 July 1994’, Bureau of Political-Military Affairs, 25 July, available at https://2001-2009.state.gov/t/ac/csbm/rd/4377.htm Bureau of Political-Military Affairs (1995) ‘Chairman’s Statement, The Second ASEAN Regional Forum, Bandar Seri Bagawan, Brunei Darussalam, 1 August 1995’, Bureau of Political-Military Affairs, 1 August, available at https://2001-2009.state.gov/t/ac/csbm /rd/4376.htm Bureau of Political-Military Affairs (2000) ‘Chairman’s Statement, the Seventh ASEAN Regional Forum, Bangkok, Thailand, 27 July 2000’, Bureau of Political-Military Affairs, 27 July, available at https://2001-2009.state.gov/t/ac/csbm/rd/4370.htm Bureau of Political-Military Affairs (2002) ‘The ASEAN Regional Forum: A Concept Paper’, Bureau of Political-Military Affairs, 15 July, available at https://2001-2009 .state.gov/t/pm/rls/fs/12052.htm Campbell, K.M. and Sullivan, J. (2019) ‘Competition without Catastrophe: How America and Challenge and Co-Exist with China’, Foreign Affairs, September/ October, available at https://www.foreignaffairs.com/articles/china/competition-with -china-without-catastrophe Center for Strategic and International Studies (2020) ‘Council for Security Cooperation in the Asia-Pacific (CSCAP)’, available at https://www.csis.org/node/34439/event Chheang, V. (2019) ‘Multilateralism in Southeast Asia’, ASEAN Vision Institute, 12 February, available at https://www.asianvision.org/news/2019/2/12/minilateralism -in-southeast-asia Cook, M. (2018) ‘Southeast Asia’s Developing Divide’, in G. Rozman and J.C. Liow (eds.), International Relations in Asia’s Southern Tier: ASEAN, Australia, and India, Singapore: Springer, pp. 63–76. Council on Foreign Relations (CFR) (2020) ‘North Korean Nuclear Negotiations, 1985– 2019’, available at https://www.cfr.org/timeline/north-korean-nuclear-negotiations European External Action Service (2019) ‘EU-ASEAN Relations’, 30 July, available at https://eeas.europa.eu/sites/eeas/files/eu-asean_factsheet_july_2019.pdf Garnault, R. (1999) ‘APEC Ideas and Reality: History and Prospects’, Paper to the 25th Pacific trade and Development Conference, Osaka, 16–18 July. Ganasagaran, A. (2018) ‘Is Minilateralism the Way Forward?’, The ASEAN Post, 27 May, available at https://theaseanpost.com/article/minilateralism-way-forward Goh, E. (2017) ‘ASEAN-Led Multilateralism and Regional Order: The Great Power Bargain Deficit’, International Relations in Asia’s Southern Tier: ASEAN, Australia, India, edited by Gilbert Rozman and Joseph Chinyong Liow, Singapore: Springer, pp. 45–61. Government Publishing Office (2001) ‘APEC Leaders’ Statement on Counter-Terrorism’, U.S. Government, 21 October, available at https://www.govinfo.gov/content/pkg/PPP -2001-book2/pdf/PPP-2001-book2-doc-pg1277.pdf Grossman, D. (2018) ‘The Quad is Not Enough’, Foreign Policy, 19 October, available at https://foreignpolicy.com/2018/10/19/to-balance-china-call-vietnam-malaysia -philippines/ Gulang, G. (2017) ‘Are Minilaterals the Future of ASEAN Security?’, East Asia Forum, 30 September, available at https://www.eastasiaforum.org/2017/09/30/are-minilaterals -the-future-of-asean-security/ Hendartyo, M. (2020) ‘3 Kapal Perang Indonesia Usir Kapal Nelayan Cina di Natuna’, Tempo, January 12, available at https://bisnis.tempo.co/read/1294106/3-kapal-perang -indonesia-usir-kapal-nelayan-cina-di-natuna/full&view=ok

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International Court of Justice (2002) ‘Case Concerning Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia v. Malaysia) (Merits)’, Summaries of Judgements, Advisory Opinions and Orders of the International Court of Justice, available at https://www.icj -cij.org/files/case-related/102/10570.pdf International Court of Justice (2008) ‘Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge (Malaysia/Singapore), Summary of the Judgement of 23 May 2008’, Summary 2008/1, 23 May 2008, available at https://www.icj-cij.org/ files/case-related/130/14506.pdf International Crisis Group (ICG) (2011) ‘Waging Peace: ASEAN and the Thai-Cambodian Border Conflict’, International Crisis Group Asia Report No. 215, 6 December, available at https://www.crisisgroup.org/asia/south-east-asia/thailand/waging-peace -asean-and-thai-cambodian-border-conflict Ikenberry, G.J. (2000) After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order after Major War. Princeton: Princeton University Press. Johnston, A.I. (1999) ‘The Myth of the ASEAN Way? Explaining the Evolution of the ASEAN Regional Forum’, in Haftendorn H., Keohane R. and Wallander C. (eds.), Imperfect Unions: Security Institutions over Time and Space, New York: Oxford University Press, 287–324. Jones, L. (2010) ‘Still in the Driver’s Seat, but for How Long? ASEAN’s Capacity for Leadership in East Asian International Relations’, Journal of Current Southeast Asian Affairs, 29(3), 95–133. Koga, K. (2018) ‘ASEAN’s Evolving Institutional Strategy’, Chinese Journal of International Politics, 11(1), pp. 49–80. Le Thu, H. (2019a) ‘China’s Dual Strategy of Coercion and Inducement toward ASEAN’, Pacific Review, 32(1), pp. 20–36. Le Thu, H. (2019b) ‘The ASEAN Regional Forum: 25 Years of Just Optics?’, CSCAP, available at http://sdsc.bellschool.anu.edu.au/sites/default/files/publications/attachments /2018-11/cscap_2019_regional_security_outlook_-_page_62_-_end.pdf Limaye, S. (2017) ‘ASEAN is Neither the Problem nor the Solution to the South China Sea Disputes’, International Relations in Asia’s Southern Tier: ASEAN, Australia, India, edited by Gilbert Rozman and Joseph Chinyong Liow, Singapore: Springer, pp. 95–109. Nilsson-Wright, J. (2017) ‘Creative Multilateralism in a Changing Asia: Opportunities for Security and Convergence between Australia, India, and Japan’, Asia Program Research Paper, July, available at https://www.chathamhouse.org/sites/default/files/ images/2017-07-28-Minilateralism.pdf Olson, M. (1971) The Logic of Collective Action: Public Goods and the Theory of Groups. Cambridge, MA: Harvard University Press. Patrick, S. (2015) ‘The New ‘Multilateralism’: Minilateral Cooperation, but at What Cost?’, Global Summitry, 1(2), pp. 115–134. Permanent Court of Arbitration (2016) The South China Sea Arbitration (The Republic of the Philippines v. the People’s Republic of China), Press Release, The Hague, 12 July, available at https://pcacases.com/web/sendAttach/1801 Rajaratnam School of International Studies (2019) Asia-Pacific Programme for Senior Military Officers (APPSMO), available at https://www.rsis.edu.sg/networking/asia -pacific-programme-for-senior-military-officers-appsmo/#.XiDYgS2ZPOR Ruwitch, J. and Ahuja A. (2010) ‘China Ruffled at Security Forum over Maritime Rows’, Reuters July 24, available at https://www.reuters.com/article/uk-asia-security-china -idUKTRE66M29F20100724

All Dressed up with Nowhere to Go 209 Schonhardt, S. and Rachman A. (2016) ‘Indonesia Sinks 60 Fishing Boats on Independence Day’, Wall Street Journal, August 17, available at https://www.wsj.com/articles/ indonesia-sinks-60-fishing-boats-on-independence-day-1471428634 Singapore Ministry of Defence (2019) ‘Factsheet on Information Fusion Centre (IFC) and Launch of IFC’s Real-Time Information Sharing System’, 14 May, available at https:// www.mindef.gov.sg/web/portal/mindef/news-and-events/latest-releases/article-detail /2019/May/14may19_fs Soeriaatmadja, W. and Arshad, A. (2016) ‘Indonesia, Malaysia, and Philippines to Conduct Coordinated Anti-Piracy Patrols in the South China Sea’, Straits Times, 5 May, available at https://www.straitstimes.com/asia/se-asia/indonesia-malaysia-and -philippines-to-conduct-coordinated-anti-piracy-patrols-in-south Teng, S-S. (2018) ‘When Giants Vie: China-US Competition, Institutional Balancing, and East Asian Multilateralism’, in H. Feng and K. He (eds.), US China Competition and the South China Sea Disputes, London: Taylor and Francis, pp. 116–133. Teng, S-S. and Emmers, R. (2011) ‘The ASEAN Regional Forum and Preventive Diplomacy: Built to Fail?’ Asian Security, 7(1), pp. 44–60. Teo, S. and Singh, B. (eds.) (2016) Policy Report on the Future of the ADMM/ADMMPlus and Defence Diplomacy in the Asia-Pacific. S. Rajaratnam School of International Studies, Singapore: Nanyang Technological University. Turcsányi, R.Q. and Kříž, Z. (2016) ‘ASEAN and the Thai-Cambodian Conflict: The Final Stage at Preah Vihear’, in A. Gerstl and M. Strašáková (eds.), Unresolved Border, Land, and Maritime Disputes in Southeast Asia: Bi- and Multilateral Conflict Resolution Approaches and ASEAN’s Centrality, Leiden: Brill, pp. 83–109. United Nations Division for Ocean Affairs and the Law of the Sea (2011) ‘Commission on the Limits of the Continental Shelf (CLCS) Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Joint submission by Malaysia and the Socialist Republic of Viet Nam’, available at https://www.un.org/ Depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm United Nations Division for Ocean Affairs and the Law of the Sea (2012) ‘Commission on the Limits of the Continental Shelf (CLCS) Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Submission by the Republic of the Philippines’, available at https://www.un.org/Depts/los/clcs_new/ submissions_files/submission_phl_22_2009.htm United States Department of State. (2019) ‘A Free and Open Indo-Pacific: Advancing a Shared Vision’, November 4, available at https://www.state.gov/wp-content/uploads /2019/11/Free-and-Open-Indo-Pacific-4Nov2019.pdf Wuthnow, J. (2019) ‘U.S. ‘Minilateralism’ in Asia and China’s Responses: A New Security Dilemma?’, Journal of Contemporary China, 28(115), pp. 133–150.

11 Sticking to the Big Brother An Analysis of the EU’s Response to Revitalised US-North Korea Relations Francesco Giumelli

Introduction This book explores the complex and dynamic relations among the United States (US), the European Union (EU) and China. This trilateral relationship has been characterised by a certain degree of fluidity as shown elsewhere in this volume, from the growing role of China in international institutions such as the International Monetary Fund (Chapter 7) and UNESCO (Chapter 1) to the assertive role played by the US in the Iranian nuclear programme (Chapter 12). Often, the decisions of each actor are based on the behaviour of one or both of the other two, so there could be several configurations of the US-EU-China triangle. In this chapter, the focus is on an instance in which the US stepped up its engagement and took an initiative in discontinuity with the previous practice of engagement with the EU and China. This is the case of the nuclear programme of the Democratic People’s Republic of Korea (DPRK or North Korea). The negotiations over the DPRK’s nuclear programme are highly instructive in view of the current development of multilateralism. While the Six-Party Talks, and some of the subsequent dynamics, are numerically multilateral, they are only minimally institutionalised, thus leaving much room for ad-hoc initiatives and related dynamics between the three players the volume focuses on. At the same time, however, the concerns about North Korea are closely related to the nonproliferation regime, as contained in various international treaties (see below). This means that a set of relevant principles and institutional arrangements is available to actors, thus opening the question of whether China, the US and the EU build on them and to what extent they are in agreement in this regard. The multilateral negotiation stopped in 2009 when the Six-Party Talks were suspended and never resumed (Davenport 2018a). Since January 2018, the Trump administration started a new phase in US-DPRK relations, moving from isolationism to rapprochement. This new initiative was triggered by the NorthSouth Korea dialogue over the Winter Olympic Games scheduled in South Korea for February 2018. The first meeting in 11 years between North Korea’s President Kim and South Korea’s President Moon paved the way to the first ever meeting between a US president and a North Korean president, which took place in June 2018 in Singapore. This rapprochement marked a qualitative distinction with DOI: 10.4324/9781003167358-15

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the diplomatic division of labour from the past wherein China was seen as the only actor talking to Pyongyang while the US was relegated to the role of “bad cop.” This substantive change of the diplomatic landscape surrounding the North Korea issue presented an opportunity for the EU to “adjust” the trajectory of its foreign policy, with the options of either adjusting more to the line of the US or of departing from it to contain the assertiveness of the Trump administration. This chapter explores the trilateral relations between the US, China and the EU in light of the recent rapprochement that the US administration attempted with North Korea. Specifically, the chapter intends to analyse whether this US initiative, which has increased the tension with China, has determined a change of policy on the side of the European Union. It will argue that EU policy towards North Korea did not change in coordination with China, and instead it has remained more in line with the one set by the United States and in line with nonproliferation as a fundamental norm of the international system. This conclusion is reached by looking at how the diplomatic initiative launched by President Trump in 2018 affected the sanctioning policy of the US, China and the EU as a proxy indicator to determine underlying foreign policy trends. This chapter is divided into four sections. The first section provides the background to the nuclear programme dispute until December 2017. The second section illustrates the “new phase” in US/DPRK relations since January 2018. The third section presents an overview of sanctions by the United Nations (UN) and the three main actors of this study, the US, the EU and China. The fourth section discusses the implications of the findings and what they mean for the analysis. Finally, the chapter concludes with a summary of its main argument, and it suggests interpretations for the broader theme of this edited volume.

Background on the Nuclear Programme Ever since the first nuclear bombs were used in Hiroshima and Nagasaki, it became evident that the proliferation of such military technology would create security concerns for states. While some have argued that the proliferation of nuclear weapons could contribute to the stability of the international system, others have pointed out that multiple nuclearised states increase the likelihood of their utilisation (Sagan & Waltz 2003). This latter position combined with the intention of nuclear states to remain the only ones with nuclear military capacity led to international efforts at regulating the proliferation of nuclear weapons since the 1960s. The central pillar of the international regime on nuclear weapons is the Non-Proliferation Treaty (NPT), which entered into force in 1970. The NPT was extended indefinitely in 1995, and it was signed by 191 states, including the 5 officially recognised nuclear states. Other arms control treaties also mentioned the need to coordinate on the proliferation of nuclear weapons, such as the Strategic Arms Reduction Treaty (START) and the Comprehensive Test Ban Treaty (CTBT), but the NPT remains the most relevant for states that do not possess nuclear capabilities, at least until the Treaty on the Prohibition of Nuclear Weapons (TPNW) enters into force, if it ever will (Njølstad 2011).

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The nuclear ambition of North Korea materialised shortly after the end of the Cold War when Pyongyang announced its intention to withdraw from the NPT in 1993/1994 and “unloaded fuel rods from its Yongbyon reactor that could be converted into plutonium suitable for nuclear weapons” (Moore 2014, p. 3). In 1994, the US struck a deal (Agreed Framework) that foresaw the freezing of nuclear operations in the DPRK, and continuation in the NPT regime in exchange for two nuclear reactors for civilian use from the US (Davenport 2018b). In 1998, Pyongyang tested a missile (Taepodong-1) that flew over Japan and triggered a new debate on the potential threat originating from the DPRK. The US accused North Korea of violating the agreement in 2002, and in January 2003 the DPRK announced its withdrawal from the NPT. This decision triggered a diplomatic initiative involving the US, China, Russia, South Korea, the DPRK and Japan, convening in what would become known as the Six-Party Talks. Meetings started in the summer of 2003 and continued till the fall of 2005. Shortly after an agreement was announced, the decision of the US to impose financial restrictions for money laundering on Banco Delta Asia (BDA) based in Macau, in which the DPRK had considerable resources, derailed the process. Pyongyang left the Six-Party Talks and resumed its nuclear programme. In 2006, the DPRK tested seven ballistic missiles and the first nuclear device. These events triggered a response from the Security Council, with the first round of sanctions imposed with UN Security Council Resolution (UNSCR) 1718 on 14 October 2006. The Six-Party Talks were resumed in 2007, and International Atomic Energy Agency (IAEA) inspectors were allowed back in the country, after having been forced to leave in 2002, but the dialogue lasted only until 2009 when a long-range missile was fired over Japan. The DPRK abandoned the negotiating table and continued its testing throughout 2009 and 2010. With the Cheonan incident in March 2010, which saw North Korea accused of having torpedoed a ship of the South Korean navy, relations between North and South Korea became further strained. This event also sparked severe criticisms from the US and the EU, which started to ponder a coordinated response to impose sanctions beyond the mandate of the Security Council (Pollack 2011). After the death of Kim Jong-il in 2011, the DPRK returned to the negotiations and a regular pattern emerged in the talks, whereby the DPRK promised to abandon its nuclear programme in exchange for aid provided by the US, the EU and other partners, including China, alternated with further missile and nuclear tests that disrupted previous arrangements. For instance, this occurred already shortly after the proclamation of the new President Kim Jong-un who signed a moratorium on uranium enrichment in exchange for food aid from the US. However, shortly after the agreement a satellite test was organised for the celebration of the anniversary of his grandfather’s birth. This was in breach of sanctions, and led to an escalation of the crisis, a further missile test in December 2012 and more sanctions. China, which had initially been more cautious vis-à-vis North Korea than the US and the EU, also took a more assertive role by more strictly enforcing financial sanctions and imposing autonomous measures on oil and visa restrictions with a view

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to reviving the Six-Party Talks in 2013 (Jiang 2019), and South Korea took a similar initiative in 2015, but their efforts did not bear fruits. The cyber-attack on Sony Pictures Entertainment led to additional sanctions imposed by the US in January 2015. The EU had imposed autonomous measures already in 2009. China followed suit as well, especially after the murder of Kim Jong-un’s halfbrother Kim Jong-nam in 2017 (Jiang 2019). The nuclear programme was not halted during these years, and the DPRK conducted several missile tests and six nuclear tests from 2006 to 2017.

The New Phase: A Look at Diplomacy The election of President Trump in November 2016 did not immediately lead to a new phase in the relations with Pyongyang. Although he had announced that he was in favour of a new nuclear deal, 2016 and 2017 were not conciliatory years, also due to the various nuclear and missile tests carried out by the DPRK (Delury 2017). Especially in 2017, the relations between Washington and Pyongyang were turbulent. The speech by President Trump on 19 September 2017 announcing that the US was willing and able “to totally destroy North Korea” and that “Rocket Man” was on a “suicide mission for himself and for his regime” indicate well the initial status of the relations between the two presidents (Liptak & Diamond 2017). The peak of the tension was achieved at the end of 2017 when the US came within the range of nuclear missiles from the DPRK, but this also paved the way for a new phase of the crisis, which started with the inter-Korean dialogue resumed already in December 2017. The dialogue was focused on the possibility of a joint participation of North and South Korea in the upcoming Winter Olympic Games in February 2018. In January 2018, Kim Jong-un announced that athletes from North Korea would participate in the 2018 Winter Olympic Games in South Korea. During the Olympics, a delegation from North Korea met with a South Korean delegation and it was agreed that President Kim Jong-un and President Moon Jae-in would meet (Boghani 2019). The meeting took place in Panmunjom on 27 April 2018, and it paved the way for other direct contacts between the two leaders. A second meeting took place informally in the same location in May 2018, and a third meeting between the two presidents, this time official, took place in North Korea on 18–20 September 2018. The new climate of the relations between the two Koreas played a role in the new initiatives undertaken by the US administration in 2018. In March, South Korean representatives communicated to President Trump that Kim Jong-un had invited him to a meeting. After weeks of preparation and accommodating moves by both sides – such as the destruction of the Punggye-ri nuclear site (Snyder & Byun 2018), the liberation of three US citizens (BBC 2018b) held as prisoners in North Korea and the visit of Secretary of State Mike Pompeo to prepare the meeting between the two presidents (BBC 2018a) – Trump met with Kim Jong-un on 12 June 2018 in Singapore, which became the first ever meeting between US and North Korean leaders. The meeting was thought to be reasonably successful to the point that a second one was considered. US Secretary of State Mike Pompeo

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made a second visit to Pyongyang in July 2018, and he was scheduled to visit it again in August 2018, but the meeting was cancelled due to lack of progress in the denuclearisation process (CNN 2018a). The degree of mutual trust (or the lack of it) seems to determine the relations between the US and North Korea. On the one hand, the requests of the US for the denuclearisation process have been defined as “gangster-like” by North Korea and, on the other, rumours have been circulated about recent progress in the construction of new intercontinental ballistic missiles in North Korea (CNN 2018b). On 3 November 2018, Pyongyang announced that lifting sanctions is a fundamental condition for negotiation on the nuclear programme, otherwise an immediate resumption of the programme could be considered. Secretary Pompeo dismissed the request, but he also confirmed that President Trump gave the explicit indication to lift sanctions only when the nuclear programme has been effectively stopped (Lynch 2018). The nuclear programme remains the central issue. Kim Jong-un conceded that the site of Tongchang-ri could be inspected regarding the abandonment of the missile programme and that the site of Yongbyun would welcome inspectors again. However, the IAEA said in a report that there have been no signs of a stop to North Korea’s nuclear programme in 2018 (Knolle 2018). Although little progress was visible, President Trump and President Kim Jong-un met for the second time in Hanoi on 26–27 February 2019. Contrarily to the enthusiasm of the first meeting, this second summit ended ahead of time and no joint statement was produced. Apparently, the pre-conditions for the start of a negotiation were too far apart. On the one hand, the US demanded the move of up to 60% of nuclear and missile equipment out of the country as a first step, while on the other, North Korea asked for the total (or partial according to DPRK sources) lifting of sanctions as a prerequisite to any negotiation. The new diplomatic dynamic between the DPRK and the US did not go unnoticed in Beijing. In fact, China very soon took initiatives to re-establish its centrality in the game. Kim Jong-un and Xi Jinping met on 25 March 2018, the first time ever for Kim Jong-un to leave the country on a diplomatic visit (Bloomberg.com 2018). Apparently, it had been the Chinese president who requested a meeting and the matter for discussion was to coordinate actions in view of the meetings with South Korea and, especially, the United States. Shortly after the Panmunjom meeting with South Korean President Moon, Kim Jong-un met again with President Xi Jinping on 7–8 May in Dalian. The participation of Kim Jong-un in the Singapore meeting was made possible, beyond the financial contribution by Singapore with USD 12 million (Kim 2018), thanks to an Air China 747 airplane that was paid for by the Chinese government. The summit with Trump was followed by a third meeting between President Xi and Kim Jong-un in only four months (Snyder & Byun 2018). The timing of resumption in China-DPRK relations, and of the bilateral meetings, shows that China attaches great importance to the process. Officially, the EU has opted for a policy of “critical engagement” with the DPRK, but in practice it has remained largely silent in the process (Pacheco Pardo 2018c). The European Council never mentioned Korea in the eight Council meetings held

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from December 2016 till March 2019. High Representative Mogherini issued a press release in June 2018 expressing “full support to the intra-Korean peace and reconciliation process, as well as the ongoing negotiations between the US and the DPRK on denuclearization” (European Union External Action 2018). In economic terms, critical engagement translated into pure isolation. EU imports from the DPRK collapsed from EUR 99 million in 2010 down to EUR 2.7 million in 2018 and in the same time span exports suffered a similar breakdown from EUR 68 million to EUR 6.2 million (Eurostat). While some believe that the EU supports North Korea with humanitarian aid (Pacheco Pardo 2018a), EuropeAid does not provide official figures about aid to the DPRK. However, this could be due to the fact that development aid is provided in modest quantity in terms of food aid disbursed by cooperation agencies of EU member states directly or, as done by France and Sweden, via the World Food Programme (WPF) (World Food Programme 2019). The leaders of several EU members have followed a similar line of cautious support for the initiative of the US. Angela Merkel mentioned that she was careful about believing promises made by the DPRK (DW 2019). Emmanuel Macron has expressed dissatisfaction after the cancellation of the first meeting between Trump and Kim Jong-un in May, and hoped that “the United States and North Korea would continue working towards denuclearizing the Korean peninsula” (Rose 2018). Overall, the position of the EU and its members seems to be timid support for the US initiative, but the limited number of public statements makes it difficult to draw any substantive conclusions. However, given that the bulk of the approach to North Korea is built on sanctions, it is likely that any re-alignment and/or re-orientation of EU policy towards North Korea should be visible in the sanctions regime.

The New Phase: A Look at Sanctions? The recent developments in the US-DPRK relations received considerable attention in the media and in the public debate, but only adjustments in, or at least a reconsideration of, the sanctions policy towards the DPRK by the main actors in the international system could be considered a real change in the dynamics surrounding this issue. Sanctions are the thorniest issue in the direct negotiations with the US. This section explores the sanctions policy of the UN, the US, the EU and China in 2018 with the aim to verify whether the US-DPRK rapprochement has either led to a general sanctions shift or any changes in the dynamics between the EU, the US and China. At the end of 2017, North Korea was the most sanctioned country in the world. Several sets of measures had been adopted by the UN, ranging from financial to trade-related measures, and other states decided to go beyond what was indicated by the UN (Biersteker et al. 2018). For instance, the US, the EU, Australia and Japan are among those who decided to impose more stringent sanctions. The most extreme example is South Korea, which has banned all trade with North Korea since the Cheonan incident in 2010 (Choe 2018). In practice, financial transactions with the DPRK are extremely complicated as are any other commercial relations,

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including humanitarian relief. At the same time, China has been often criticised for its lack of implementation of UN sanctions and its support for the regime of Pyongyang (Lee & Kim 2017). The new diplomatic phase presented above took off in such a scenario, and the aim of this section is to present the sanctions decisions since January 2018 in order to explore whether sanctions dynamics reveal any emerging pattern in the trilateral relations between the EU, the US and China. The United Nations Ever since the beginning of 2018, the only request received by the Security Council was to extend the Panel of Experts until 24 April 2019, which was done with UNSCR 2407 passed on 21 March 2018. However, the Sanctions Committee continued to update the lists of entities targeted and on several occasions before, during and after the Trump-Kim summit of June added new entities to the list. UNSCR 2397 of December 2017 added 16 individuals, mainly banking officials, and one entity, the Ministry of the People’s Armed Forces that manages the general administrative and logistical needs of the country’s military, to the asset freeze and travel ban imposed in previous measures (UN Security Council 2017). On 30 March 2018, the sanctions committee added 1 individual, 22 entities and 27 vessels to the sanctions list, all for sanctions busting activities (UN Security Council 2018a). Another entity was added on 23 May 2018, once again for the evasion of sanctions (UN Security Council 2018b). After having approved the seventh guidelines for humanitarian exceptions to the sanctions regime approved by UNSCR on 6 August 2018 (UN Security Council 2018c), the committee designated three further vessels on 16 October 2018 (UN Security Council 2018d). This activity shows that the UN has not embarked on new sanctions also because the Security Council traditionally responded to acts committed by the DPRK. However, the relaxation of tension between the US, South Korea and Pyongyang has also not resulted in any relaxation of UN sanctions. On the contrary, the Sanctions Committee stepped up its efforts to enforce sanctions in light of several violations reported by the Panel of Experts (Associated Press 2019b) as shown by the March round adding a substantial number of entities to the list. The United States The sanctions policy of the United States has not been expanded in terms of scope, in line with what was done by the UN, but, in contrast to the active diplomatic engagement, there has been a more intensive and comprehensive attempt to crack down on sanctions busting activities, especially in regard to activities carried out by China and Russia. The US has created a complex web of sanctions since Executive Order 13466 of 2008. The first regulation issued by the Office of Foreign Assets Control (OFAC), which is the body that is responsible for drafting and monitoring the imposition of sanctions in the US, dates back to 2010, and the latest executive order dates from 15 March

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2016 (OFAC 2016). The legislative framework has not been updated since the Countering America’s Adversaries Through Sanctions Act (CAATSA), which was approved on 2 August 2017. CAATSA includes 31 Code of Federal Regulation (CFR) Part 510, a modernised regulation on DPRK sanctions. Therefore, no new measures were imposed during the rapprochement phase, nor were older ones lifted. While the intention to consider the lifting of sanctions was made explicit multiple times by US officials, this has not occurred in practice. Instead, the Trump administration elaborated the principle of “maximum pressure” and strengthened the implementation of sanctions. To some extent this was in line with the findings of the Panel of Experts mentioned above, but the US administration also took additional measures. For example, it denounced 148 instances of illegal transfers of oil to North Korea facilitated by Russia, which allowed Pyongyang to import 800,000 barrels of refined petroleum products against its 500,000 limit set by the sanctions regime (Borger 2018). The US Treasure said that North Korean ports received at least 263 deliveries of refined petroleum products that were prohibited under UN Sanctions. (Rappeport 2019). Divergences between the US and China became visible with the decision to add two Chinese companies to the black list for sanctions violations in March 2019 (Rappeport 2019). Specifically, OFAC added Dalian Haibo for providing shipping services and Liaoning Danxing for purchasing prohibited goods for the government of North Korea. In line with the overall approach of enhancing implementation rather than imposing new sanctions with a special focus on Chinese businesses, OFAC published four documents providing guidelines for assessing risks for businesses with supply chain links to North Korea’s shipping practices, examples on deceptive shipping practices and on ways to address them between February 2018 and March 2019 (Department of State et al. 2018; Department of the Treasury 2018a, b; Department of Treasury et al. 2019). Additionally, specific instructions are provided also in foreign languages, such as Korean, Indonesian, Arabic, Vietnamese, Japanese and, above all, Chinese. China Formally, China implements UN sanctions on North Korea. However, the position of the government changed in the months following the direct contact between Pyongyang and Washington, both in political as well as in administrative terms to the point that a gap has emerged with the US and the EU. China gained a reputation for its light implementation of sanctions on the DPRK in the earlier phases of sanctions, but Beijing became more serious after the nuclear tests carried out in 2016. Although reports on China-DPRK trade continued to emerge (Shin 2018), the overall trade went down significantly in 2016 and 2017. Since early 2018, China seems to have returned to a more relaxed implementation of UN sanctions on North Korea. Given that around 90% of DPRK trade is with China, it is also not a surprise that the impact of sanctions on North Korea depends very much on the level of enforcement pursued by authorities in Beijing (Katzeff Silberstein 2019).

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The last English-language announcement published on the website of the Ministry of Commerce in China indicated the implementation of UNSCR 2397 on 5 January 2018 (Ministry of Commerce, People’s Republic of China 2018). However, in September 2018, foreign ministers of both China and Russia declared they were in favour of a partial lifting of DPRK sanctions. Foreign minister Wang Yi of China said that “given the positive developments,” the UN “needs to consider invoking in due course [a partial lifting] to encourage [North Korea] and other relevant parties to move denuclearisation further ahead” (Borger 2018). This position was reiterated in March 2019 after the unsuccessful meeting in Hanoi between President Trump and President Kim (Associated Press 2019a). This new international posture of China appears to have been accompanied by a relaxation of sanctions enforcement by Beijing, as indicated by a report prepared for the US Congress in the fall of 2018 (Brunnstrom 2018). Accordingly, “China has effectively reopened a back door to China-North Korea trade and has eased the unprecedented pressure that accompanied strict Chinese enforcement of sanctions at the start of 2018” (Snyder and Byun 2018). According to a Chinese interlocutor cited in a report by the Stimson Center-38 North, “China has lifted most of the unilateral sanctions it imposed on North Korea since 2017, including the resumption of suspended Chinese group tours to North Korea and flights between Pyongyang and Beijing as well as Shanghai” (Sun 2018). It seems to be no coincidence that trade across border regions between China and the DPRK picked up again in the second half of 2018 (Harashima 2018). Further assistance can be provided by, for instance, classifying certain shipments as humanitarian aid. The European Union The volume of trade between the EU and the DPRK has constantly shrunk over the past two decades to a meagre EUR 9 million in 2018. Trade was as high as 386 million in 2002 and 350 million in 2004, shortly before the first UN round of sanctions in 2006. Since 2014, data suggest that the EU implemented sanctions that are comparable to what was done by the US. Consistently, the EU kept this similarity to US sanctions on the DPRK in this latest “new phase” of sanctions, thereby demonstrating more affinity to the US than to China. The European Union kept up with the pace determined by the United Nations. In 2018 only, the Council of the EU approved five decisions and eight implementing decisions. The Council adopts “implementing acts” when previously adopted decisions need adaptation or revision. For instance, the addition of individuals and entities to the list as indicated by the Sanctions Committee would be done with an implementing act, while the alteration of the criteria to be listed under sanctions or the adoption of new restrictive measures would require a new decision by the Council. Council implementing decisions 16 of 8 January and 58 of 12 January 2018 add 16 persons and 1 entity to the list of persons and entities subject to restrictive measures as indicated by UNSCR 2397 adopted in December 2017. Council decision 89 of 22 January 2018 amends the autonomous measures that

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the European Union had imposed in 2016 with decision 849 of 26 May by adding 17 individuals to the list (European Union 2018). Similar to the UN and the US, the main concern of the EU has been to enhance the implementation of measures against the DPRK in 2018. Council decisions 293 of 26 February 2018 and 611 of 19 April 2018 amended the lists by adding individuals and entities involved in sanctions evasion activities. Other efforts of the Council went towards keeping the list up to date and reviewing its content periodically, as done by Council decision 1087 of 30 July 2018. The EU was criticised as this focus on sanctions implied the risk of losing economic opportunities in the “DPRK Bonanza” by not taking a more active role in the “new phase” (Pacheco Pardo 2018b). The implementing acts adopted by the Council, eight in 2018 only, aimed at transposing the decisions of the Sanctions Committee as indicated above and at ensuring the legality of the listing by amending mistakes that were unveiled during the year. The sanctions policy of the European Union has aligned with the one of the UN in 2018 despite the new phase in US-DPRK relations, triggered by the summit meetings between the presidents, which means that the EU did not relax its sanctioning policy as done by China.

Trilateral Relations Unchanged: When Security Matters The substance of the trilateral relations between the US, China and the EU confirmed that the transatlantic link is strong on security matters. The rapprochement of the US administration with North Korea contributed to the return of China to its more traditional approach towards Pyongyang of a more relaxed implementation of UN sanctions. Instead, the EU showed little assertiveness in the new context, and it remained committed towards a better implementation and enforcement of UN/ US/EU measures. This chapter speaks directly to the issue of triangular interaction among the US, the EU and China on security matters (Men et al. 2019). The Cold War was celebrated as the stereotypical example of a bipolar world. The end of the Cold War, instead, inaugurated a unipolar moment, and many observers of international events have since suggested that this unipolar moment would be replaced by a multipolar system. For instance, the deepening of EU integration and the rise of China, especially since its accession to the WTO in 2001, appear to signal the expected rebalancing of the US in the international system. Although the EU and the US had shared common interests and ideals in the past three decades, the wars in Iraq and Afghanistan as well as the disagreements on other key issues such as global warming and a renewed scepticism of the Trump administration on the EU integration project widened the transatlantic divide. In this context, the nuclear programme of North Korea provided a good case study to investigate whether the EU took this as an opportunity to distance itself from the US, whether it decided to confirm the ties of its transatlantic loyalty or whether it possibly opted for a more assertive role as mediator between the US and China.

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If we are to assess the role of the EU as an international actor, it could be argued that the European Union has missed an opportunity in the diplomatic sphere to play a more central role in relation to the nuclear programme problem (on opportunity in actorness, see Bretherton and Vogler 2006). There have been initiatives to hold the summits between Trump and Kim Jong-un in Finland and Sweden, but tangible efforts have not been made to play a more assertive role in the negotiation. In one of the interviews carried out for this project, it was stated that the EU would have been willing to act, but the feeling was that the role of a mediator would have had any chance of success only if the role was recognised by the core players being mediated, namely the US and China (EUobserver.com 2018a, b; Anonymous Interview with EU official). However, the recognition of such a role for the EU is limited, and this means a rather negative view prevails about the EU on the international stage. Another alternative would have been to exploit the fact that the EU does not have a direct stake in the nuclear programme and become the mediator directly between North and South Korea. This would have led also to a liaison function between the Koreas and the other parties, such as the US, China, Japan and Russia. This latter option of a more direct involvement has not even been mentioned in the interviews held with EU officials and Korean experts. With regard to sanctions policy, the decision to remain “in line” with the US could be justified as a pragmatic decision taken by the EU. Strategically, the EU does not have immediate security interests at stake in the outcome of the nuclear negotiation. Even in the unlikely event of one or more devastating nuclear detonations, EU member states would not be the primary target. In light of this, many in Brussels and in EU capitals give greater weight to the negative implications for other security issues, such as counter-terrorism and balancing Russia, that would come with being seen as siding with China on a very sensitive foreign policy issue such as the contentious nuclear programme of North Korea. In general, the relative inaction of the EU could also be interpreted as an unavoidable choice. Reflecting upon the expectations-capability gap (Hill 1994), one could argue that, even if the EU would have liked to play a more assertive role, it simply could not do so, for lack of military capacity and legitimacy, since it was not seen by the two Koreas as a credible mediator. In the current situation surrounding the DPRK, business as usual was the only option, which meant, on the one hand a low profile diplomatically, and on the other the mere implementation of sanctions, mainly on the basis of UN Security Council decisions, by Brussels and EU members, which is coincidentally also in the interest of the US. All this means that the alliance between the EU and the US was probably stronger and less costly than any temptation of the EU to side with China in order to demonstrate its critical attitude towards the Trump administration or to play a more independent role in any other way. Countering nuclear proliferation is also a relevant case study to explore the nature of multilateralism in the 21st century. Nuclear proliferation has been a major concern for great power politics in the past half century. Starting with confidence building initiatives with the creation of the International Atomic Energy Agency (IAEA) in 1957, international cooperation moved towards

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capping state capabilities and the signing of the NPT in 1968. The indefinite extension of the NPT in 1995 further cemented the ban on nuclear proliferation as a norm of the international system and, since then, cases of nuclear deviance should have become a matter of equal concern for the US, the EU and China. The three actors not only have signed on upholding the norm, but collaboration would also help them preserve a position of power since they all possess nuclear capabilities. This should lead us to expect that the US, the EU and China pursue similar goals and implement roughly equivalent policies when dealing with cases of deviance from the international norm on nuclear proliferation such as that of North Korea (Smetana 2020). Instead, the policies of the three actors were uncoordinated with substantial differences between them. In the first phase the US was more concerned, and this convinced the EU to enact more stringent sanctions as well. From 2016 till 2018, China also joined the other two to step up the pressure on the regime in Pyongyang marking the highest point of convergence in a long time in the triangular relation. The rapprochement triggered by the Trump administration in 2018 created the incentive for China to engage directly with Kim Jong-un to affirm and maintain its special relationship with North Korea. These divergent diplomatic initiatives had also an effect on how strictly sanctions were implemented by China. With regard to multilateralism this would suggest that generalised principles of conduct in the Ruggiean sense, as they derive from the non-proliferation regime, have become contested in practice, even though no-one would probably openly say so. At best, one could talk of shallow or diffuse multilateralism, but the great degree of unpredictability in the case of international efforts to discipline the North Korean nuclear programme might even suggest that multilateralism has been more about creating ad-hoc opportunities for diplomatic interaction than about stable institutions. The role of norms is particularly interesting for the behaviour of the EU. Considering the literature on Normative Power Europe (NPE), then the behaviour of the EU could be assessed based on the different, and often competing, norms that were identified (Manners 2006). For instance, if non-proliferation is the main norm, then the EU decision to align its action with the UN fulfils the expectations of an NPE. Instead, if the norm is about limiting the consequences of foreign policy decisions on civilians, then the decision to strictly implement sanctions in a moment of re-opening and not to coordinate actions with China, which was relaxing implementation, is less coherent with the expectations of an NPE. This means that whether or not the EU, or even China or anyone else, conforms to the expectations of NPE depends in the very first place on what the norms are. And by no means does the EU have any particular privilege to be necessarily always on the right side.

Conclusion The trilateral relations between the US, the EU and China became a key feature of the international system in the new millennium, with the transatlantic relations being a central variable in the balance among the three. The Trump administration

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questioned this balance on several occasions on a number of issues as explored in this edited volume. In the security realm, the DPRK nuclear programme offers an interesting opportunity to investigate whether the assertiveness of the Trump administration changed the equilibrium among the three. Therefore, this chapter investigated whether the EU adopted a policy more in line with the preferences of China rather than the United States once the “new phase” in the negotiations between the US and North Korea had started in early 2018. The EUobserver published an opinion piece by Ramon Pacheco Pardo in May 2018, which asked whether the European Union is a follower or a leader in the nuclear negotiations (Pacheco Pardo 2018c). The analysis done in this chapter seems to suggest that the EU is a follower of the US on the nuclear programme of North Korea. In the new phase of negotiations, started by the renewed inter-Korean dialogue for the Winter Olympics in South Korea, President Trump and President Kim held two meetings in Singapore and Hanoi. These diplomatic initiatives appear to have caused a change of policy in Beijing, from a tightened implementation of UN sanctions back to a more relaxed one. In this phase, although the US opened a diplomatic dialogue with Pyongyang, Washington continued to resolutely implement UN and domestic sanctions policy on North Korea. With both the US and China changing their approach towards the DPRK, the EU had the opportunity to revise its policy of close adherence to the UN/US approach and embark on a more “Chinese” approach towards the nuclear programme. Instead, the EU continued with its sanctions policy and, when possible, even ratcheted up the implementation of restrictive measures with further listings of vessels and entities accused of sanctions evasion. Even from the normative angle of nuclear nonproliferation, the triangular relations in security matters appear to give priority to historical alliances and national interests over global norms. One lesson one might draw from this case study is that the trilateral relations among the US, the EU and China may have changed when it comes to low politics issues, for example in the economic realm, but they remain unaltered insofar as security matters are concerned. This has a number of implications. First, the EU has no direct stake in the nuclear negotiations, therefore it decided to prioritise security implications for other areas and decided rationally to stabilise to the extent possible the strategic alliance with the US rather than jeopardising its interests elsewhere, like for example in Eastern Europe. Second, the EU has no capabilities to do otherwise, therefore the only possible course of action is to follow the course set by the Security Council. This is a de facto delegation of responsibility to the UN, which can also be conveniently justified/motivated with the intention of upholding international law and processes against power politics. Additionally, the EU missed the opportunity to play a more relevant role in the crisis, possibly because its close ties with the US make it not a credible mediator in the eyes of local and regional actors. Third, the decision to follow the directives of the Security Council would also be in line with the expectations of an NPE if the priority is given to the upholding of the non-proliferation norm as a key pillar of the international system. Instead, if the norm to uphold were the minimisation of the humanitarian impact on civilians, then contributing to the

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most comprehensive sanctions regime imposed since Iraq in 1990 could put the coherence with the NPE expectations into question. Further studies would be necessary to assess whether the findings of this chapter on policies towards the DPRK can be confirmed beyond the field of sanctions. For instance, it would be also relevant to explore and investigate the development aid policy of the EU towards the DPRK. This could show whether the decision to impose sanctions more strictly is also accompanied by other foreign policy instruments that complement or weaken the utilisation of sanctions. In more general terms, other security areas should be looked at in order to find instances of cooperation or lack thereof in the security interplay between the US, China and the EU. For instance, it would be extremely relevant to analyse the behaviour on counter-terrorism and on cyber-security threats as well as regional challenges, such as the conflicts in Syria, South Sudan and Yemen. This study contributes to the ongoing debate on the stability of the international order and further analyses will certainly help to enhance the understanding of the system of alliance that will frame the international system in the 21st century.

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12 Failing Forward US Withdrawal and the Increasing Role of the EU and China vis-à-vis the Iran Nuclear Deal Agha Bayramov and Mustafa Ali Sezal Introduction The US President Donald J. Trump declared on 8 May 2018 that he was withdrawing from the Joint Comprehensive Plan of Action (JCPOA), which is publicly known as the Iran Nuclear Deal. The Trump administration has decided not to endorse the deal and argued that a tougher deal needs to be put in its place (The Guardian 2018). The reasons for this decision are Iran’s ballistic missile development and use, the desire to inspect suspicious military installations and Iran’s military activities in the Middle East (Tajbakhsh 2018). For decades, the US has been one of the most important supporters of both multilateral and bilateral agreements in the region and in international relations at large. Nevertheless, this strategy seems to be changing as President Trump openly questions the multilateral dimension of US foreign policy and commitment to long-standing allies and security partners. He even sends messages that suggest a more radical break with many traditional foreign policy postulates of the US (Tajbakhsh 2018). Considering this development, it is argued that both multilateralism and multilateral agreements face serious threats (Linn 2018). In the same vein, for an active supporter of the multilateral nuclear deal like the European Union, this has created a difficult situation in which it has to re-examine its international strategy and the role of established partnerships. However, the process so far has generally been analysed through the lens of US–Iran relations by excluding other important actors, like the European Union (EU) and China. It is important to note that these were not bilateral talks between Washington and Tehran, but multilateral ones that benefitted from the active participation of other relevant international actors. To have a more nuanced analysis, this chapter proposes to focus on the European Union and China in addition to the US. More specifically, this chapter examines the characteristics of the Iran Nuclear Deal and investigates the dynamics of the triangular interplay between the US, China and the EU in the deal. In doing so, it aims to explain the increasing role of the EU and China in saving the multilateral Iran nuclear deal, to outline the challenges facing these two actors and to identify prospects for the deal as a whole in the years ahead. DOI: 10.4324/9781003167358-16

228 Agha Bayramov and Mustafa Ali Sezal This chapter seeks to address the following questions: do the US, China and the EU have any explicit approach to multilateralism that can be linked to the nuclear deal? Have they placed more emphasis on the quality of multilateral governance or on its particular interests? To what extent can we talk about US distancing, withdrawal or abdication? How have the EU and China positioned themselves in saving the nuclear deal and with what effect? Who are other influential players and how do China and the EU interact with them? This chapter makes two core arguments: first, it argues that the EU and China aim to enhance their international actorness position by showing that they are capable of preserving the multilateral nuclear deal with or without US involvement. Second, this chapter argues that the EU’s and China’s saving efforts depend on how their state and private companies will position themselves. Including companies is important for this analysis as they played a crucial role in pre-deal negotiations and still play a role in implementing (and bypassing) the sanctions put in place against Iran after the US withdrawal. It will not include Russia as the country similarly is under Western sanctions and does not have sufficient economic power to contribute to upholding the Iran Nuclear Deal against the will of the US. It also needs to be noted that the election of Joseph R. Biden in November 2020 created a positive atmosphere regarding the US’s return to the deal, but the conditions of such a return are not clear. Therefore, the chapter focuses specifically on the deal itself and the circumstances created following the US withdrawal. The chapter is divided into five main parts. Following the introduction, the second section briefly outlines the history of the Iran Nuclear Deal. The third section then turns to an analysis of trilateral relations between the US, China and the EU in multilateral settings. The fourth and main section of the chapter discusses whether the EU and China can meet Iran’s expectations for keeping the nuclear deal. It also discusses the position of EU- and China-based transnational corporations and its implications for the Iran Nuclear Deal. The conclusion presents the chapter’s findings.

The Iran Nuclear Deal: A Brief History Iran’s first nuclear facility, the Tehran Research Reactor (TRR), was built in 1967 by the United States (Mousavian & Mousavian 2018, p. 170). Three years later, in 1970, Iran signed and ratified the nuclear Non-Proliferation Treaty (NPT) (Vakil & Quilliam 2019, p. 7). In the same vein, Iran concluded a number of nuclear-related contracts with Western companies and institutions, such as Siemens and Massachusetts Institute of Technology for receiving technical equipment and training (Mousavian & Mousavian 2018, p. 171). However, the 1979 Iranian Revolution halted Iran’s ambitious nuclear projects, since the new revolutionary government perceived them as an extension of an American dominance strategy in Iran. In like manner, the US and other Western countries chose to withdraw from all nuclear contracts with Iran and sought to isolate the country through sanctions and coercion. In 1995, Russia replaced the West and helped instead to complete the Bushehr nuclear reactor and to develop another three

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reactors for Tehran (Vakil & Quilliam 2019, p. 8). In response to Iran’s nuclear plans, President Bill Clinton signed the Iran–Libya Sanctions Act in 1996, which introduced sanctions for foreign companies that invest heavily in Iran or Libya (The New York Times, 6 August 1996). Four years later, Bill Clinton signed the Iran Non-Proliferation Act, imposing sanctions on individuals or organisations aiding the Iranian nuclear programme (US Department of State 2000). In October 2003, Iran agreed to suspend uranium enrichment activities and to implement the “Additional Protocol,” allowing for enhanced inspections (Mousavian & Mousavian 2018, p. 173). Despite this initial agreement, Iran did not adhere to these commitments. Following continued talks with the E3 (Germany, France and the UK), Iran signed the 2004 Paris Agreement, committing it to the suspension of nuclear enrichment and to negotiations for a longterm deal on “objective guarantees” that its nuclear programme would be peaceful in nature. In exchange, the deal offered Tehran the possibility of trade discussions and of applying for membership of the World Trade Organization (WTO) (Vakil & Quilliam 2019, p. 8). In spite of this, the George W. Bush administration spurned it and insisted on its maximalist demand of “zero enrichment” in Iran (Parsi 2013). In the 2005 Iranian presidential election, Mahmoud Ahmadinejad was elected as Mohammad Khatami’s successor. After he took office, he rejected Europe’s proposed incentive package and resumed uranium enrichment in 2006 (Davenport 2019). With Barack Obama’s election in 2008, the US policy shifted again towards a multilateral Iran strategy that included direct US engagement in negotiations with Iran. In 2012, a secret back channel was established between the Obama administration and Iran, allowing for the beginning of a “pragmatic complement to the wider P5+1 discussion group.”1 The 2013 Iranian presidential election of a centrist candidate, Hassan Rouhani, was instrumental in moving the P5 + 1 process forward (Davenport 2019). After several decades of restrictions, talks and sanctions between Iran and the West, the JCPOA, which is known as the Iran Nuclear Deal, was signed on 14 July 2015 by Iran, the five permanent members of the United Nations Security Council (UNSC), Germany and the European Union (EU). The multilateral deal includes the long-debated technical issues of acceptable thresholds for Iran’s uranium enrichment, the future status of the existing uranium enrichment facilities in Fordow and Natanz as well as the nuclear research reactor in Arak, inspection mechanisms for the International Atomic Energy Agency (IAEA), an implementation timeline and the progressive lifting of the existing sanction regimes imposed by the United States, the EU and the United Nations (UN) (European Union External Action Service 2018a). In light of this, some scholars have called it a “breakthrough” and a “win-win” for all parties involved (Shirvani & Vukovic 2015). Others have argued that the Iran deal is a European success story of effective multilateralism (Cronberg 2017b). However, despite Iranian compliance, the deal now faces an uncertain future. In November 2016, Donald J. Trump was elected as the 45th president of the United States. In opposition to the policies introduced by Barack Obama, Trump announced the withdrawal from the JCPOA deal and the re-launching of sanctions shortly after he took office.

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Trilateral Relations between the US, China and the EU in the Iran Nuclear Deal Before explaining trilateral relations between the US, China and the EU in the JCPOA deal, it is necessary to clarify what “multilateralism” means to these actors since the understanding of the term is by no means fixed or given. There are different and contradictive forms of multilateralism (assertive, effective and pragmatic). Each form comprises different sets of indicators, expectations and meanings for the different actors (Tago 2017). In 1993, the US Ambassador to the United Nations, Madeleine Albright, defined “assertive multilateralism” as a method for “using the new setting of the international community to bring about agendas that are good not only for the United States, but the entire world,” a way by which the US “assert[s] American leadership within a particular setting” in order to achieve “a multiplier effect” (as cited in Albright 1993, p. 13). Kagan (2002) referred to the US form of assertive multilateralism as a distinctly utilitarian and outcome-oriented brand of multilateralism. An important example of the different views on multilateralism is the role of the Security Council in the Iran Nuclear Deal. While the EU comprehends the involvement of the Security Council as a vital factor in the Iran negotiation process, the US views it as a desirable, but not essential factor (Cronberg 2017a). In line with the assertive standpoint, in the early 2000s, the US uncompromisingly insisted on the complete dismantling of Iranian nuclear facilities and a “zero enrichment” policy. For the US, “zero enrichment” posed the crucial precondition for the nuclear negotiation process. The EU, on the contrary, advocated for the suspension of uranium enrichment and understood it as a peaceful right of Iran to do so. Hence, the suspension was seen as being sufficient for a continuation of the negotiation process. Given the assertive multilateralism approach, the US always tried to push hard lines and more Iranian sanctions in the Security Council. The US administrations under Clinton, Bush Jr. and Obama, for instance, all gradually expanded the scope of the existing Iran sanctions regime by targeting ever more commercial activities of third countries in Iran (Pieper 2017, p. 107). Additionally, for the US, military intervention has always been one of the options to use against Iran should it not comply. In contrast to the US, the EU has commonly advocated for an effective multilateralism. More specifically, the EU is committed to the adherence to international law and well-functioning international institutions. This rule-based system, where international norms are respected and only breaches are acted upon, is the foundation for wielding “effective multilateralism” (Cronberg 2017a, p. 244). This was a common thread throughout the entire Iran Nuclear Deal process up to the deal’s implementation phase. In contrast to the aggressive stance of the US and its assertive multilateralism approach, the EU has played an impartial balancer role in the Iran negotiation process. In the early phase of the nuclear negotiations, the EU’s main goal was to prevent a possible military confrontation and the repetition of the US action in Iraq (Pieper 2017). Considering the EU’s

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effective multilateralism, the invasion of Iraq represents a clear disregard for international norms and a direct challenge to the legitimacy of the UN Security Council. Following the effective multilateralism strategy, the EU pushed Iran to sign the Paris Agreement and the IAEA Additional Protocol to stop uranium enrichment in the early 2000s. Although Iran did not comply with the agreement, the EU invited the Security Council to get involved in the negotiation process as the EU regards the Security Council as an indispensable authority. In doing so, the EU aimed to keep the discussion within the United Nations and avoid the US’s unilateral military intervention. In order to preserve its good relations with the US, the EU simultaneously joined the US’s unilateral sanctions on Iran. By retreating to effective multilateralism, the EU thereby tried to restrict Iran within international norms and agreements. The Chinese version of multilateralism is pragmatic (Li & Chen 2010). In other words, China prefers to participate, engage and push for cooperation in areas that would serve Chinese interests, while avoiding taking excessive responsibilities, blocking or delaying initiatives that would harm its interests or making grand proposals (Kastner, Pearson & Rector 2016; 2019). This was a common thread throughout the entire JCPOA process. In contrast to the EU and the US, China does not believe that the Western sanctions will bring a solution to the nuclear issue since (1) these measures are not regarded as a legitimate tool to pressure Iran, (2) these tools are understood to simply preserve the hegemonic power of the West and (3) China does not believe that Iran has the advanced technology to reach its nuclear aim in the first place (Crisis Group 2010). Unlike other regional countries, such as Kuwait or Qatar, Iran is not a friend of the US, therefore, China keeps its political and economic relations with Iran to balance the US’s hegemonic influence in the region. To this purpose, China has engaged in a “delay and weaken”-strategy regarding sanctions and resolutions in the UNSC (Pieper 2019). This strategy has allowed China to preserve its relations with Iran, while causing significant damage to its relations with the West. Throughout the 12-year negotiation process with Iran due to concerns over its nuclear programme, American and European perceptions of multilateralism shaped the direction of the negotiations. Ultimately, the European view prevailed and the JCPOA as final agreement is an illustration of how multilateral policies based on international rules/laws can help constrain power politics and contribute to a more peaceful, fair and prosperous world.

China, the EU and Companies: Another Triangle? After the US announced its withdrawal from the Iran Nuclear Deal in 2018, the leaders of the three European signatories – France, Germany and the United Kingdom – and China were quick to respond. They stated that they stood committed to the JCPOA and its full implementation by all sides (European Union External Action 2018b). The European leaders called on the US to consider the implications and allied security before re-imposing sanctions. However, the US Treasury said it would re-impose sanctions on Iran – targeting, among other

232 Agha Bayramov and Mustafa Ali Sezal things, aircraft exports to the country, its metals trade and its attempts to acquire US dollars (BBC 2018b). While the Europeans objected to any renegotiation of the deal, the leaders expressed willingness to address, together with the US, issues outside the scope of the JCPOA, such as Iran’s ballistic-missile programme and its regional activities (European External Action Service 2018b). This section posits that the EU and China aim to enhance their international actorness position by showing that they are capable of preserving the multilateral deal with or without US involvement (Adebahr 2018). The decision of the US to withdraw from the agreement already undermined its global reputation, but China’s and EU’s global and regional images are in danger as well since the success or failure of the deal will show whether they have proper instruments and resources to have an impact as independent global actors. Additionally, this section proposes to focus on companies in addition to the EU and China. More specifically, the last part of this section seeks to answer who are the other influential players and how do China and the EU interact with them? To what extent have China and the EU been able to gather support amongst other participants of those institutions? The EU Perspective As stated in its global strategy, the EU is committed to a rules-based multilateral international order, and it fully supports the implementation of multilateral treaties and projects (European External Action Service 2018a). The EU’s external relations and foreign policies have also expanded remarkably since the end of the Cold War and the signing of the Treaty of Maastricht in 1993. This position was strengthened following the signing of the Lisbon Treaty in 2007 (Howorth 2010). Currently, the EU has positive relations with almost every country, organisation and most regions in the world and its international role has been recognised by different actors as such (Hadfield 2017; Söderbaum & Van Langenhove 2005). This is an outcome of the long-standing efforts of its member states and institutions to establish the EU as a credible and coherent player in the global arena (Koops 2011). The contribution of the EU to the resolution of the nuclear challenge increased the EU’s self-presentation as an actor in foreign policy and boosted its effective multilateral approach (Adebahr 2017). As Federica Mogherini, the then High Representative of the Union for Foreign Affairs and Security Policy, claimed on the day after the deal was signed: “Yesterday the European Union wrote one of the best pages of its history: the Iranian nuclear deal has been reached thanks to the facilitation of the EU” (European Union External Action 2015). The EU is also the chair of the Joint Commission, which is responsible for the implementation of the Iran Nuclear Deal. After the US withdrew, Federica Mogherini and the leaders of the three European signatories – France, Germany and the United Kingdom – stated that they stood committed to the nuclear deal and its full implementation by all sides (European Union External Action 2018a). The Belgian Prime Minister, Charles Michel, moreover emphasised that “the EU cannot accept

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that the US decided the regions with which European companies can or cannot do business” (as cited in Rosenberg 2018). The EU and its member states have since started to look for (new) ways and mechanisms to neutralise re-imposed US sanctions (Schwammenthal 2018). In January 2019, the French, German and UK foreign ministers launched the Special Purpose Vehicle (SPV) or INSTEX. The SPV will act as a “compensation” service. By overseeing a ledger of payments related to exports and imports between Europe and Iran, the SPV will be able to coordinate payments so that a European exporter of goods (e.g. pharmaceutical, medical devices and agriculture) to Iran can get paid by a European importer of goods from Iran, eliminating the need for crossborder transactions (Financial Times 2018b). It hence coordinates payments so that exporters can be paid from funds outside of Iran while importers can be paid by funds within Iran (Batmanghelidj & Hellman 2018). Additionally, by using the SPV, the EU aims to mitigate US economic power over its companies and the primacy of the dollar in international finance, which will strengthen the role of the euro in global trade and finance. While some member states (e.g. Belgium) have already joined the SPV, other member states (e.g. Austria and Luxemburg) are still sceptical about the SPV system, which may undermine the credibility of the EU’s efforts to counteract the US sanctions (Crisis Group 2019). However, humanitarian goods are not directly targeted by US sanctions. In light of this, Tehran has been pressing Europe to also use the trading mechanism to establish credit lines so that Iranian oil exports to Europe can be financed through it. The Iranian Deputy Foreign Minister, Abbas Araghchi, for example, mentioned that “for Instex to be useful for Iran, Europeans need to buy oil or consider credit lines for this mechanism, otherwise Instex is not like they or us expect” (The Guardian 2019). Iran’s oil exports have plummeted from about 2.8 million barrels/day in May 2018 to less than 500,000 barrels/day. In light of this, Iran has warned it may start to enrich uranium to weapons-grade levels if it does not see any economic benefits from the JCPOA. More concretely, in May, Iran announced that it was scaling back some of its commitments under the JCPOA and warned that if it saw no movement from Europe on trade by 7 July 2019 it would resume refining uranium to a higher level than permitted by the deal. To ease the tension and facilitate Iran’s oil export, the French president, Emmanuel Macron, has started an initiative to offer Iran a 15 billion dollar credit line (Financial Times 2019). In addition, in 2018 the European Commission (EC) adopted a 50 million euro support package for private projects in support of sustainable economic and social development in Iran (European Commission 2018). Member states also showed support. Austria, Denmark and Italy, for example, stepped in to provide export guarantees to Iran. Furthermore, the EC requested the European Investment Bank (EIB) to support European businesses in Iran. Nevertheless, the EIB only shortly afterwards announced that the bank was “not the right tool” to save the nuclear deal (Reuters Brussels 2018). EIB President Werner Hoyer said that while he supports EU efforts to keep the 2015 deal alive after the US decision to withdraw from it, Iran is a place “where we cannot play an active role. There is no

234 Agha Bayramov and Mustafa Ali Sezal European Bank which is presently able to do business in and with Iran” (Reuters Brussels 2018). The refusal of the EIB to support European business in Iran is a crucial blow to the credibility of the EU’s political efforts to establish itself as an independent global actor and preserver of the Iran Nuclear Deal. Yet, these examples illustrate that the EU indeed has an array of tools and instruments in place to maintain the nuclear deal. The following years will show whether it will deploy these instruments effectively and whether its individual member states will follow in line. The full impact of the unilateral US sanctions will depend on how successful the EU’s SPV will turn out to be. The Chinese Perspective In general, China’s Middle East policy is mainly based on apolitical logic. More concretely, China prefers to establish diverse commercial ties with all regional actors, regardless of existing disputes. In doing so, Beijing offers its own multilateral and/or bilateral network system, including initiatives such as “One Belt, One Road” (OBOR) also known as the Belt and Road Initiative (BRI) or the establishment of the Asian Infrastructure Investment Bank (AIIB) (Beeson & Li 2016; Chen 2016; Teer & Wang 2018). Politically, however, China is not willing to get involved in the regional issues. This apolitical logic allows China to expand its economic activities in a highly competitive environment without being bogged down in the turmoil of regional, political and security conflicts (Hong 2014). Following the US withdrawal from the Iran Nuclear Deal in 2018, China confirmed its support for the JCPOA and its full implementation (CNBC 2018). Diplomatically, China also uses supportive language towards Iran by accusing the US of being primarily responsible for the growing tensions in the Gulf and openly condemning Washington’s military adventurism in the region. Simultaneously, China seeks to protect the JCPOA deal and the credibility of the global nuclear non-proliferation regime, because China is itself a nuclear-weapon state with no interest in seeing the number of nuclear-weapon states grow. Iran’s ascent to a nuclear-weapon state could potentially entice other regional states to follow suit and unleash a dangerous international proliferation dynamic (Pieper 2019). Nonetheless, when looking at China’s reaction to the JCPOA crisis, it can be observed that China is in a dilemma in its Iran policy. On the one hand, it is in China’s interest to demonstrate its role as a “rising but responsible” power. It is an opportunity for Beijing to show its economic and political capability to systematically respond to crucial international developments. As part of its pragmatic multilateral policy, Beijing seeks to highlight its ability to understand the difficulties facing the Global South as a fellow developing state. To this purpose, Beijing is committed to sharing its expertise in order to overcome them all together with other developing nations (Benabdallah 2019). On the other hand, China’s relations with the US remain delicate and even strained due to the recent trade war. In this sense, China seeks to show that it is a responsible stakeholder and strategic partner of Iran, while refraining from challenging the US-led regional security architecture (Hong 2014).

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To support the nuclear deal, the Chinese state-owned investment group CITIC established a 10 billion dollar credit line with Iran, and the China Development Bank is considering 15 billion dollars more (Reuters Ankara 2017). In order to appease Iran and to avoid a full-scale conflict in the Persian Gulf, China continued importing a small but consistent quantity of Iran’s petroleum, but China’s priorities in Iran go beyond economic interests. China is aware that its security of energy supplies is dependent on maintaining political stability in the region. Although China has established diverse energy partnerships with other regional countries, such as Saudi Arabia and the United Arab Emirates, the recent escalations (i.e. Iran’s attacks on oil tankers and the attacks on Saudi oil facilities) have illustrated that China’s security, economic and political interests are not fully safe. It is therefore crucial for China to appease Iran in order to prevent a full-scale conflict. To encourage its companies, China should support the SPV, which would then become a stronger multinational financial mechanism. Overall, it can be argued that both China and the EU know that a failure of the Iran Nuclear Deal would have severe implications for their international credibility and reputation in the eyes of the global community, as other countries and organisations would see that against the US it is not possible to have a sustainable multilateral treaty and/or cooperation. In the same line, this would also show that it is not China and the EU but the US that determines with which regions and countries EU and Chinese companies can do business. At present, the credibility of European integration is under pressure from all sides; in the national democracies of the member states, but also in intra-EU relations and politics. A failure of the Iran Nuclear Deal could add another layer to this internal struggle illustrated by Brexit and the debates surrounding it, and it would illustrate that both the EU and China lack decisive responses to key international developments and changes. The Position of Transnational Corporations Although the Iran Nuclear Deal was signed between states and intergovernmental institutions, transnational corporations are one of the silent actors that have played an important role (Sherman 2018). This section explains who other influential players are and how China and the EU interact with them. How have companies positioned themselves in the nuclear deal and with what effect? According to some observers of the pre-deal talks, intense lobbying by large EU companies leveraged the negotiators, including the United States, into compromise. After all, companies from the EU member states – like Siemens, Daimler-Benz, Bayer and others – have been very interested in restarting commercial relationships with Iran, which the existing sanctions regime has limited thus far (Shirvani & Vukovic 2015). European companies have been eagerly awaiting the end of the sanctions, hoping to reenter the Iranian market and to thereby rejuvenate the European–Iranian trade relations. For example, Siemens, Shell, Peugeot and Renault all indicated their interest in exploring investment opportunities in Iran (Pieper 2019).

236 Agha Bayramov and Mustafa Ali Sezal However, after the US withdrawal, European transnational corporations announced that they might stop their business in Iran all together, if they cannot get exceptions from the US sanctions (Financial Times 2018a). European companies moreover fear being denied access to US financial markets, loss of current accounts in US banks or loss of US operating licences (Pieper 2019). In the past, the US Treasury imposed penalty payments on the British banks Lloyds, HSBC, Standard Chartered, Barclays, on the Dutch ING and ABN Amro, on the Swiss bank UBS and on the Royal Bank of Scotland (Pieper 2019, p. 45). Due to the fear of this type of penalty, the French oil company Total announced that it would pull out of the billion-dollar deal it made with both Iran and the Chinese company CNCP, if it could not obtain a waiver from the US (BBC 2018a). Following this announcement, in August 2018, Total officially left the Iranian energy market and cancelled its involvement in the South Pars gas project (Reuters Ankara 2018). It had a 30% stake in the gas field, which Iran now intends to give to CNPC. The Chinese company might fulfil some economic tasks, but CNPC does not have native advanced technology (like the Europeans) to offer Iran a solution with its own energy development. Likewise, other crucial transnational companies (e.g. Siemens, General Electric and Boeing) announced that they would postpone and/ or stop their business contracts with Iran (Nasseri 2018). In this regard, these examples illustrate that the EU is willing to save the deal and to receive economic benefits through investments and assistance, but this seems to be less likely without the involvement of its transnational corporations. Besides economic benefits, these companies offer modern advanced Western technology, which Iran lacks. More specifically, as Gilli and Gilli (2019) explain, imitating technological systems is more difficult these days, since countries cannot simply copy technologies without first developing their industrial, scientific and manufacturing capabilities. To effectively rehabilitate its oil infrastructure and reduce production costs, Iran will, for instance, need to import advanced technology available only in Europe and the US (Nasseri 2018). However, compared to the 400 billion dollar Iranian market, these companies would choose the 19 trillion dollar US market (Crongberg 2017a). Nearly a dozen other European firms have also cancelled or suspended trade and investment deals with Iran as they are not willing to face economic confrontation with the US. In this regard, it can be argued that the diplomatic efforts of the EU and its member states are not sufficient, because the Iran Nuclear Deal needs the support of private companies as well to function properly. In the Chinese case, companies that operate in Iran are usually big stateowned companies (CNPC, Sinopec and CNOOC) with fewer links to the US capital market than European companies (Pieper 2019). This might save them from economic penalties from the US Treasury Department. Chinese companies have also received loans from their government to build metro, railway and other infrastructure in Iran (Vatanka 2019). Therefore, compared to European corporations, Chinese companies are more active in Iran. Nevertheless, Chinese companies are not fully secured from the US economic sanctions and still need to pay close attention to Washington’s sensitivities on Tehran. Chinese telecom

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giants Huawei and ZTE have been fined by the US due to their sanction violations (BBC 2017). In April 2018, the US Department of Justice, moreover, opened a formal investigation into the Chinese telecommunications giant Huawei in relation to its alleged violation of US sanctions on Iran. The situation worsened further, in September 2019, when the US Treasury department blacklisted two oil tanker subsidiaries of Cosco, a leading Chinese shipping and logistics company (Talley 2019). To avoid further sanctions, Chinese companies have significantly reduced oil imports from Iran (Financial Times 2019). Imports of around 210,000 bpd were the lowest in nearly a decade and 60% below their 2018 level, as some Chinese refiners, concerned about the sanctions, refrained from dealing with Iran. China took 788,000 tons of crude from Iran in August 2019, compared with a monthly average of 2.4 million tons in the previous year (Time 2019). Iran’s oil sales have plummeted from 2.6 million barrels a day (b/d) in May 2018 to 350,000 b/d in June 2019. In the same vein, Chinese exports to Iran, which include machinery and parts for Iran’s manufacturing sector, decreased from 1.2 billion dollars in October 2018 to 428 million dollars in February 2019 (Bathmangelidj 2019). As mentioned above, the French company Total left its billion-dollar energy deal with Iran in 2018. In the aftermath of this event, the Chinese company CNCP agreed to replace Total. In October 2019, however, CNPC had already left Iran’s flagship hydrocarbon project again. The company did not publish an official statement on the reason for its action, but it was argued that CNPC abandoned the project because of US sanctions and concerns over potential impairment of its own interests in America (Financial Times 2019). Similarly, in 2018, the Bank of Kunlun, the state-owned bank at the heart of China-Iran trade, suspended most financial transactions with Iran and announced that it would only service trade exempt from US secondary sanctions (Financial Times 2019). In contrast to Sino-American business relations, Sino-Iranian businessrelations are at a relatively low level. Unlike their government, some Chinese firms are prioritising the US and Europe over Iran in response to the US sanctions. They have pulled back from Iran to avoid jeopardising opportunities to expand in the US and Europe (Hong 2014). Moreover, one of the main motivations behind China’s investment in South Pars – the export of liquefied natural gas (LNG) to China – has largely disappeared, as Iran is unlikely to export LNG anytime soon because of burgeoning domestic demand for natural gas and its lack of liquefaction technology due to sanctions (Hong 2014). Chinese companies are hence preoccupied with its trade dispute with the US and, at the same time, frustrated with Iran, because Iran has prioritised its relations with Europe over those with China. Due to these circumstances, many Chinese companies do not believe that it is worth doing business with Iran, given also the difficulties involved (Vakil & Quilliam 2019). In sum, it can be argued that some Chinese private actors, institutions and banks hesitate to follow their government’s lead on Iran as they fear losing access to the US market. Therefore, their behaviour is not fully in accordance with Beijing’s official political declarations. With regard to the JCPOA, it should have become obvious that besides states and intergovernmental organisations, transnational corporations are among the main

238 Agha Bayramov and Mustafa Ali Sezal players, offering both technical and economic assistance. Besides political and/or diplomatic support, China and the EU thus need to gain the commercial support of their transnational corporations.

Conclusion The Iran Nuclear Deal (or JCPOA deal) has hitherto largely been researched from the US-Iran angle that exclusively focuses on explaining the bilateral disagreement between the two countries and its possible regional and global security implications. However, as this chapter has shown, this assessment does not sufficiently explain the diverse political actors engaged in the JCPOA deal and its continuity. In contrast to this common approach, this chapter offered a different reading that incorporates the roles of the EU and China as well as of their transnational corporations. This chapter thereby addressed three often times neglected points in the discussion of the Iran Nuclear Deal. Firstly, it explained the different perceptions of multilateralism, namely assertive (the US), effective (the EU) and pragmatic (China). More specifically, it explained that the US, China and the EU have different approaches to multilateralism and that “multilateralism” therefore means different things to these actors. While the existing literature on multilateralism has constantly argued that multilateralism is in crisis due to the US’s limited international engagement in multilateral global governance since 2017, this chapter showed that this is not the case. Instead, it set out to illustrate that multilateralism is a dynamic process that shifts over time. This dynamic had been a common thread throughout the entire JCPOA process, up to the deal’s implementation phase, and has essentially shaped the final version of the Iran Nuclear Deal. Secondly, this chapter has argued that the Trump administration’s decision to withdraw allowed China and Europe to act upon a shared commitment to enhancing their own credibility as global political actors by upholding the global nuclear non-proliferation regime. It is the latter which is at risk. In other words, if the EU and China accepted the US position, this would negatively affect their credibility as members of the Joint Commission, which has been responsible for the JCPOA implementation. If, on the other hand, the deal cannot be saved, the global non-proliferation regime will lose one of the very few examples where multilateral negotiations prevented the emergence of another nuclear-weapon state. Nonetheless, if China and the EU jointly condemned US sanctions and found legal and economic ways to oppose the US sanction policies, it would send a clear political message to Washington. While both actors have explicit approaches to multilateralism, as illustrated through the chapter these translated into specific but rather weak policies to save the deal. Related to this latter point, this chapter has thirdly shown that the EU and China need to consider the preferences and interests of the transnational companies, if they want to save the nuclear deal. One of the neglected actors in the discussions of the Iran Nuclear Deal are transnational corporations and their economic and technological power. Yet, their technological and economic investments are a

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strategic source of revenue and a key input to the budgets of Iran, China and the EU. Although the EU and China have the political will to stand up to the US’s sanctions, they cannot compensate for the sanctions without the strong support of their leading companies. This chapter has therefore analysed the complicated relations of these companies that are effectively deterred by the US sanctions, due to their extensive ties with the United States, despite their general support for the diplomatic and political messages of the EU and China. As a result, the Chinese and European corporations have followed a slightly different approach towards the Iran Nuclear Deal recently. In the long run, it will, however, be crucial not only that the EU and China use diplomatic and political messages, but that they gain the substantial and enduring support of their corporations in order to save the JCPOA and enhance their international credibility as global political actors.

Note 1 The P5 + 1 refers to the permanent members of the UNSC (the US, France, the UK, China and Russia) plus Germany, who came together on the Iranian nuclear negotiations. In Europe, this group is also commonly known as the E3 + 3.

References Adebahr, C. (2017) Europe and Iran: The Nuclear Deal and Beyond. New York: Routledge. Adebahr, C. (2018) ‘EU Policy Options in Case of U.S. Withdrawal from the Iran Nuclear Deal’, Carnegie Europe, 12 April, available at https://carnegieeurope.eu/2018/04/12/eu -policy-options-in-case-of-u.s.-withdrawal-from-iran-nuclear-deal-pub-76230 Atlantic Council (2019). Despite sanctions, China is still doing (some) business with Iran. https://www.atlanticcouncil.org/blogs/iransource/despite-sanctions-china-is-still-doing -some-business-with-iran/ Batmanghelidj, E. (2019) ‘Why China Isn’t Standing by Iran’, Bloomberg, 27 March, available at https://www.bloomberg.com/opinion/articles/2019-03-27/spooked-by-u-s -sanctions-china-isn-t-standing-by-iran Batmanghelidj, E. and Hellman, A. (2018) ‘How Europe Could Blunt U.S. Iran Sanctions Without Washington Lifting A Finger’, Foreign Policy, 3 December, available at https://foreignpolicy.com/2018/12/03/how-europe-can-blunt-u-s-iran-sanctions -without-washington-raising-a-finger-humanitarian-spv/ BBC (2017) ‘ZTE fined $1.1bn for flouting US sanctions against Iran’, 7 March, available at https://www.bbc.com/news/business-39197677 BBC (2018a) ‘Iran Nuclear Deal: US Rejects EU Plea for Sanctions Exemption’, 16 July, available at https://www.bbc.com/news/world-us-canada-44842723 BBC (2018b) ‘Total Set to Pull out of Iran Gas Deal without Sanctions Waiver’, 16 May, available at https://www.bbc.com/news/business-44147814 Beeson, M. and Li, F. (2016) ‘China’s Place in Regional and Global Governance: A New World Comes into View’, Global Policy, 7(4), pp. 491–451. Benabdallah, L. (2019) ‘Contesting the international order by integrating it: the case of China’s Belt and Road initiative’, Third World Quarterly, 40(1), pp. 92–108. Bendeich, M. and Hafezi, H. (2017) ‘China pushing billions into Iranian economy as Western firms stall’, Reuters, 30 November, available at https://www.reuters.com/

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Kagan, R. (2002) ‘Power and Weakness’, available at https://www.hoover.org/research/ power-and-weakness Kastner, S., Pearson, M. and Recto, C. (2016) ‘Invest, Hold Up, or Accept? China in Multilateral’, Security Studies, 25(1), pp. 142–179. Koops, J.A. (2011) The European Union as an Integrative Power? Brussels: Brussels University Press. Li, M. and Chen, G. (2010) ‘China's Search for a Multilateral World: Dilemmas and Desires’, The International Spectator, 45(4), pp. 13–25. Linn, J. (2018) ‘Recent Threats to Multilateralism’, Global Journal of Emerging Market Economies, 9(1), pp.86–13. Madeleine Albright. (1993) ‘Statement’, 24 June 1993, in: 103/1 U.S. Congress, House, Committee on Foreign Affairs, Subcommittee on International Security, International Organizations and Human Rights, Hearing: U.S. Participation in United Nations Peacekeeping Activities, Washington, D.C., 1993, 13. Mousavian, S.H. and Mohammad, M. (2018) ‘Building on the Iran Nuclear Deal for International Peace and Security’, Journal of Peace and Nuclear Disarmament, 1(1), pp. 169–192. Nasseri, L. (2018) ‘Multinationals’ Dreams of Hefty Iran Contracts Have Withered’, Bloomberg, 5 November, available at https://www.bloomberg.com/news/articles/2018 -11-05/multinationals-dreams-of-hefty-iran-contracts-have-withered Parsi, T. (2013) A Single Roll of the Dice: Obama’s Diplomacy with Iran. New Haven: Yale University Press. Pieper, M. (2017) ‘The Transatlantic Dialogue on Iran: The European Subaltern and Hegemonic Constraints in the Implementation of the 2015 Nuclear Agreement with Iran’, European Security, 26(1), pp.99–119. Pieper, M. (2019) ‘An Iran Nuclear Deal Without the United States? Chinese, European, and Russian Interests and Options After the US Withdrawal from the Joint Comprehensive Plan of Action’, in F.T. Yu and D.S. Kwan (eds.), Contemporary Issues in International Political Economy, Singapore: Palgrave Macmillan, pp. 35–53. Reid, D. (2018) ‘China Ignores Trump Threat on Iran, Says Business There Will Continue’, CNBC, 8 August, available at https://www.cnbc.com/2018/08/08/china-ignores-trump -threat-on-iran-says-business-there-will-continue.html Reuters Ankara (2017). China pushing billions into Iranian economy as Western firms stall. Available at https://www.reuters.com/article/us-iran-nuclear-china-idUSKBN1DU225 Kastner, S. L., Pearson, M. M., & Rector, C. (2018). China's strategic multilateralism: Investing in global governance. Cambridge University Press. Reuters (2018) ‘Iran says France's Total has officially left South Pars deal: TV’, 20 August, available at https://www.reuters.com/article/us-iran-france-total/iran-says-frances-total -has-officially-left-south-pars-deal-tv-idUSKCN1L50PH Rosenberg, E. (2018) ‘The EU Can’t Avoid U.S. Sanctions on Iran’, Foreign Affairs, 10 October, available at https://www.foreignaffairs.com/articles/europe/2018-10-10/eu -cant-avoid-us-sanctions-iran Schwammenthal, D. (2018) ‘Europe, the US and the Iran deal: The need to resolve transatlantic disagreements’, European View, 17(2), pp. 218–226. Sherman, W. (2018) ‘How We Got the Iran Deal’, Foreign Affairs, available at https:// www.foreignaffairs.com/articles/2018-08-13/how-we-got-iran-deal Shirvani, T. and Vuković, S. (2015) ‘After the Iran Nuclear Deal: Europe's Pain and Gain’, The Washington Quarterly, 38(3), pp. 79–92.

242 Agha Bayramov and Mustafa Ali Sezal Söderbaum, F. and Van Langenhove, L. (2005) ‘Introduction: The EU as a Global Actor and the Role of Interregionalism’, European Integration, 27(3), pp. 249–262. Tago, A. (2017) ‘Multilateralism, Bilateralism, and Unilateralism in Foreign Policy’, Oxford Research Encyclopedia of Politics, 2, pp. 1–18. Tajbakhsh, K. (2018) ‘Who Wants What from Iran Now? The Post-Nuclear’, The Washington Quarterly, 41(3), pp. 41–61. Talley, I. (2019) ‘U.S. Sanctions Chinese Firms for Allegedly Shipping Iranian Oil’, The Wall Street Journal, 25 September, available at https://www.wsj.com/articles/u-s -sanctions-chinese-firms-for-allegedly-shipping-iranian-oil-11569424569 Teer, J. and Wang, S. (2018) ‘Sino-Iranian Asymmetrical Interdependence in Light of the Iran Nuclear Issue’, Asian Journal of Middle Eastern and Islamic Studies, 12(2), pp. 1–27. The Guardian (2018). Donald Trump says US will no longer abide by Iran deal – as it happened. https://www.theguardian.com/world/live/2018/may/08/iran-nuclear-deal -donald-trump-latest-live-updates The Guardian (2019). Europe sets up scheme to get round US sanctions on Iran. https:// www.theguardian.com/world/2019/jan/31/europe-sets-up-scheme-to-get-round-us -sanctions-on-iran US Department of State (2000). Iran Nonproliferation Act of 2000 https://2009-2017 .state.gov/t/isn/c15234.htm#:~:text=U.S.%20Department%20of%20State&text=The %20act%20authorizes%20the%20President,mass%20destruction%20programs%20in %20Iran Vakil, S. and Quilliam, N. (2019) ‘Getting to a New Iran Deal: A Guide for Trump, Washington, Tehran, Europe and the Middle East’, Chatham House, available at https:// www.chathamhouse.org/publication/getting-new-iran-deal-guide-trump-washington -tehran-europe-and-middle-east Vatanka, A. (2019) ‘China’s Great Game in Iran’, Foreign Policy, 5 September, available at https://foreignpolicy.com/2019/09/05/chinas-great-game-in-iran/ Website President of Iran (2016) ‘Full text of Joint Statement on Comprehensive Strategic Partnership between Iran and China’, available at http://www.president.ir/EN/91435

13 The Middle East Peace Process: Changing US Policies and EU and Chinese Involvement Mor Sobol

Introduction The Israeli-Palestinian conflict is one of the most intractable conflicts in recent history. Given its geopolitical implications for the international arena and the Middle East landscape, the conflict has attracted the attention of the international community, which attempted to resolve the longstanding struggle between the Israelis and Palestinians. Yet, multilateral bodies such as the United Nations (UN) and multilateral mechanisms like the Middle East Quartet,1 as well as numerous international peace conferences and multilateral mediation efforts, all came up short of bringing the two sides to live in peaceful coexistence and resolving the conflict. Now, when we focus on the three main actors discussed in this edited volume, namely the United States (US), the European Union (EU) and the People’s Republic of China (PRC), one can say that whereas there might have been diverging motives for the involvement of the three in the Middle East Peace Process (MEPP), and different views about the best way to bring the Israelis and Palestinians to the negotiation table, they all remained committed to the peaceful settlement of the conflict. Furthermore, despite their differences, the US, the EU and China, for the most part, agreed to uphold the international consensus based on UN Security Council resolutions. As this chapter will demonstrate, this agreed conformity has changed significantly following Donald Trump’s victory in the 2016 US elections. Against this background, the objective of this contribution is to examine how the American policies have affected the EU and China’s involvement in the MEPP. In so doing, the contribution follows the same line of questions addressed in this edited volume. Specifically, the chapter attempts to engage with questions such as how the EU and China have responded to the shift in US foreign policy. How did they position themselves vis-à-vis the US? Were they capable (or willing) to present alternatives (or even a united front) against US unilateralism? Following this brief introduction, this chapter is structured as follows. The second part focuses on the various policies and actions pursued by the Trump administration in the context of the MEPP. Then, the third part discusses the involvement of the EU and its member states, while the fourth part examines DOI: 10.4324/9781003167358-17

244 Mor Sobol China’s role in the MEPP. The fifth part reviews the main findings while connecting them to the broader themes discussed in this book. Finally, the chapter offers some concluding remarks.

The Trump Administration and the MEPP Shortly after winning the elections, President Trump made the MEPP a high priority for his new administration while famously referring to it as “the deal of the century.” Now, given Trump’s initial ambiguity concerning the two-state solution,2 his pro-Israel stance regarding the Israeli settlements and the status of Jerusalem and his pro-Israel peace team, it is not surprising that the Israeli rightwing government headed by Prime Minister Benjamin Netanyahu welcomed the new administration with open arms as “at no time in the past has the relationship begun on such a positive footing” (Klieman 2016, p. 375). However, it also appears that Trump’s relations with the Palestinians started on good terms. Following a meeting with President Trump in May 2017, the Palestinian Authority’s President, Mahmoud Abbas, praised Trump for his commitment to solving the conflict while stating “with you we have hope” (cited in Kuttab 2017). Still, in a rather short period of time (starting December 2017), the Trump administration has not only managed to violate international law and disengage from international organisations and agreements,3 but also break with previous US policies and with the international community’s common position concerning the MEPP. The most prominent example is President Trump’s announcement in December 2017 regarding the status of Jerusalem. Upending decades of official US policy and violating previous UN Security Council resolutions on the status of Jerusalem, Trump decided to recognise Jerusalem as Israel’s capital while declaring the relocation of the US Embassy from Tel Aviv to Jerusalem. Other key examples include, inter alia, · · · · ·

quitting the UN Human Rights Council (June 2018). cutting all financial assistance to the Palestinians through USAID, the United Nations Relief and Works Agency (UNRWA) and other aid programmes (August–September 2018). closing the Washington office of the Palestine Liberation Organization (PLO) (September 2018). hinting that the US will not object to Israeli annexation of the West Bank (May–June 2019). stating that Israel’s West Bank settlements do not violate international law (November 2019).

While the Israeli right-wing government enthusiastically supported Trump’s policies, the Palestinians, viewing the US as a biased negotiator, fiercely condemned the US’s unilateral moves, and refused to engage further with the American administration. Moreover, President Abbas and other Palestinian

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officials have been frantically looking for partners (such as China, the EU and Russia) with the aim of countering the American involvement in the MEPP. Essentially, the international community sent a rather clear message to the US as most UN member states (128 to 9, with 35 abstentions) voted to condemn Trump’s decision on Jerusalem (Gladstone & Landler, 2017). The American policies were also heavily criticised by decision-makers and policy analysts across the globe. The key arguments put forward by critics are (1) Trump’s unilateral policies diverge from the international consensus and violate international law; (2) the American actions will trigger a further escalation in the region; (3) the actions against the Palestinians (e.g. cutting off financial assistance) will have a devastating impact on the Palestinian population; and (4) the US’s pro-Israel approach undermines its role as a neutral mediator (Indyk 2019; Lovat 2018; Noack 2017; Telhami 2019; just to name a few). In fact, even within Israeli circles (including the Israeli security establishment), there are concerns that Trump’s policies will backfire, thus endangering Israel’s interests and security (Hussain 2018). Evidently, the critics continued to express their dismay at the American administration when the economic (White House 2019) and political (White House 2020) components of Trump’s “deal of the century” were finally revealed in June 2019 and January 2020 respectively. For instance, when Senior Adviser Jared Kushner introduced the key economic plan in an “Economic Workshop” in Bahrain, observers quickly stated that not only did the Israeli and Palestinian officials not attend the workshop, but it is also unclear where the money ($50 billion in regional investment projects) will come from. Additionally, by treating the peace process as if it were a simple business transaction and focusing on economic incentives to lure the Palestinians into making difficult concessions, the American administration neglects the complexity of the conflict and the sensitivities of both sides (especially the Palestinian one) concerning the conflict’s core issues such as the two-state solution, and the status of Jerusalem as well as the right of return of Palestinian refugees (Hussain 2018; Oppenheim & Scazzieri 2019; Spetalnick & Holland 2019). Along similar lines, when the peace plan was formally unveiled by President Trump, commentators remained sceptical as to whether the peace plan had any potential to bring peace. After all, the “deal” was signed only with one side while the Palestinian leadership refused to take part. What is more, it was rather clear that the American peace plan significantly favoured the Israelis (e.g. Israeli annexation of the West Bank) while marginalising (e.g. the status of Jerusalem and Palestinian “statehood”) or completely ignoring (e.g. the question of Palestinian refugees) the Palestinian positions (Black 2020; Hattis Rolef 2020; Miller 2020; Tharoor 2020). Against this background, it is no wonder that Prime Minister Netanyahu wholeheartedly welcomed Trump’s plan whereas President Abbas declared: “After the nonsense that we heard today we say a thousand no’s to the ‘deal of the century’” (cited in Tharoor 2020). Indeed, one might not be able to identify with great certainty the geopolitical rationale behind this dramatic shift in US policy towards the MEPP. Still,

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we could highlight three factors that might have played a role in the Trump administration’s decision to pursue this course of action. First, it could be argued that many of the actions taken by the American administration were motivated by domestic politics, and specifically Trump’s desire to satisfy his electoral Christian Evangelical base and other pro-Israel donors (following the 2016 and 2020 US elections). Second, given that key personnel responsible for the formulation of US Middle East policy are known to be passionate supporters of the state of Israel4 it is of little surprise that American policies mostly favoured Israel’s interests. Finally, the third factor could be attributed to many actions taken by President Trump and his administration,5 namely Trump’s aspiration to overturn the policies of his predecessor, President Barack Obama. Notwithstanding, it is evident that President Trump and other senior officials have taken a different line of argument while defending US actions. The American objective, they argue, is to eliminate sensitive political issues (such as the status of Jerusalem), and thus simplify any future political negotiations. In addition, American officials maintain that US actions (e.g. in the case of Jerusalem) simply recognise the realities on the ground. In addition, the Trump administration explained that there is a need for a new approach as all previous attempts to resolve the Israeli-Palestinian conflict failed. Finally, as the Palestinians harshly condemned the US and Israel in international forums while refusing to engage with the Americans, some actions (e.g. cutting off funding) do not only act as retaliation but also aim to pressure the Palestinian leadership to go back to the negotiation table (Indyk 2019; Landler 2018; Lovat 2018; “Palestinians Have Done Nothing but Beg, ‘Badmouth’ US, Haley Says” 2018; Tharoor 2020). Still, in light of US unilateral policies, its divergence from the international consensus and general contempt towards multilateral platforms, “there has been an increase in the number of voices within diplomatic discourse challenging the monopoly of the U.S. as the exclusive mediator in the Israeli-Palestinian peace process” (Lehrs 2018, p. 1; see also Hassan 2019). In the following sections of the chapter, the impact of the American course of action on the European and Chinese involvement in the MEPP will be examined.

European Union’s Role in the Israeli-Palestinian Peace Process Diplomatic relations between Israel and the EU (then the European Economic Community) were established as early as 1959. Yet, despite thriving Israel-EU trade ties, “[w]ithout question, it is the friction over the Israeli-Palestinian conflict that has most soured Israeli-European relations for the past three decades” (Pardo & Peters 2010, p. 6; see also Dachs & Peters 2005). Be it the Holocaust and the memory of Jewish experience in Europe, its dependence on the US or its perception that the EU is pro-Palestinian, Israel has never accepted the political role the EU aspired to take in the peace process. In June 1980, the European Community (EC) developed its first common position towards the conflict, that is, the Venice Declaration. Principally, the Venice Declaration (1) recognised the right of the Palestinians to self-determination; (2)

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called for the return of territories under Israel’s control from the Six-Day War; (3) determined the Israeli settlements as illegal under international law; and (4) recognised the PLO as the legitimate representative of the Palestinian people. The Declaration attracted harsh criticism from the Israeli side, which responded in a rather undiplomatic manner: “The Resolution calls upon us … to include in the peace process with the Arab S.S. known as ‘The Palestine Liberation Organization’” (Pardo & Peters 2010, p. 8). Evidently, since the Venice Declaration, there were various occasions when conflicts emerged due to the EU’s position and criticism. Prominent examples are the EU’s criticism regarding the Israeli separation wall, the EU’s decision to condition any upgrade in Israel-EU relations with progress in the MEPP and the recent European Court of Justice’s ruling to label products made in Israeli settlements (Dachs & Peters 2005; ‘Israeli Settlement Products Must Be Labelled as Such, EU’s Top Court Rules’ 2019; Oppenheim 2018; Pardo & Peters 2010). Moreover, it seems that the EU was unable to play a significant role in the MEPP beyond being the key financial contributor to the Palestinians (i.e. being a “payer” rather than a “player”). In the words of Lehne (cited in Schultz 2017): “The EU has never been capable of translating the quite significant engagement in terms of money and trade relationship into a real role to play in terms of foreign policy” (see also Kaya 2017; Wildangel 2018). There are two factors that contributed to the EU’s weak position. First, the EU and its member states (MS) were sidelined by the US who insisted on remaining the leading player in any political negotiations. In fact, Ben Ami argues that “U.S. hegemony bordered on fanaticism anytime participation of others was mentioned” (cited in Lehrs 2018, p. 2; see also Wildangel 2018). Second, internal divisions among the MS as to how to approach both Israel and Palestine also prevented the EU from taking a stronger stance in the MEPP (Kaya 2017; Lehne 2017; Oppenheim 2018). Now, taking note of the US’s unilateral policies as well as the Palestinian refusal to cooperate with Trump’s administration, it appears that the EU might be in a position to strengthen its role in the MEPP. In the words of Abidi (cited in ‘The EU’s New Role in the Middle East?’ 2018): “The current circumstances offer a window of opportunity for the Europeans to play a very important role as a facilitator of negotiations, since the US isn’t in a position to do it” (see also Konecny 2018; Oppenheim 2018). When we examine EU’s response, it seems that the EU and its MS mostly focused on condemning the American actions while emphasising the EU’s commitment to contribute to the multilateral efforts to resolve the conflict based on the twostate solution. Following Trump’s December 2017 announcement concerning the status of Jerusalem, the High Representative of the European Union for Foreign Affairs and Security Policy (HR), Federica Mogherini, maintained that: [The EU] has a clear and united position: we believe that the only realistic solution to the conflict between Israel and Palestine is based on two States,

248 Mor Sobol and with Jerusalem as the capital of both the State of Israel and the State of Palestine. (EEAS 2017b) The EU’s position was echoed by various MS including Germany, France and Sweden (Noack 2017). Moreover, at the UN General Assembly meeting in December 2017 (as well as at the Security Council), the majority of the MS voted in favour of denouncing Trump’s decision on Jerusalem (Gladstone & Landler 2017). Similar criticism was also expressed by the EU and the MS following the US’s decision to (1) withdraw from the UN Human Rights Council (EEAS 2018a); (2) close the PLO Office in Washington (‘Germany Says Closure of Washington PLO Office Undermines Two-State Solution’ 2018); and (3) declare that Israeli settlements in the West Bank do not violate international law (Rettman 2019). In regards to the US decision to cut its economic aid to the Palestinians (through UNRWA), the European External Action Service’s (EEAS) Spokesperson stated that while it is regrettable that the US decided not to be a part of this multilateral initiative, “[t]he EU and its Member States, and many others in the international community … have pledged their support to the continuity of the work that UNRWA is doing” (EEAS 2018b). What is more, the EU and some of the MS (e.g. Germany and France) have mobilised additional funds to support the Palestinians and UNRWA (‘US Announces It’s Cutting All Funding to Palestinian Refugee Agency’ 2018). Finally, in the context of Trump’s peace plan, the European Union and some MS were not too shy to show their disapproval of the American approach towards the MEPP. Evidently, the EU sent only technical-level officials to the Economic Workshop in Bahrain. Moreover, following Trump’s announcement of the political aspect of his peace plan, EU’s new HR, Josep Borrell, stated: The EU recalls its commitment to a negotiated two-State solution … as set out in the Council Conclusions of July 2014. The US initiative … departs from these internationally agreed parameters. (EEAS 2020; see also ‘EU Warns Trump on Mideast Peace Plan’ 2018; ‘Europe Must Stand by the Two-State Solution for Israel and Palestine’ 2019; Kennedy 2020) Principally, it could be said that the difference between the European and American positions towards the MEPP was perfectly captured by (now former) HR Mogherini during a speech at the European Parliament, when she admitted that: We have one main disagreement [with the US] that concerns multilateralism and the very idea of a system for global governance. We Europeans continue to see multilateralism as the best way to prevent chaos, conflicts and confrontations in a multi-polar world. (Mogherini 2018)

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Against this backdrop, it appears that the EU was not able to transcend its existing role in the MEPP. Specifically, the EU and its MS have continued to address the peace process on a declaratory level without offering any initiative to counter the US position. In fact, Konecny posits that the EU was encouraging the US to introduce its peace plan “as if that peace plan is going to be in line with the EU’s understandings and the international consensus” (cited in Schultz 2017). In addition, despite EU’s aspiration to become more of a “player” than a “payer,” the only real action the EU took was offering more funding to the Palestinians in order to compensate for the loss of American aid. Thus, Hawwash (2018) concludes: Far from rising to the occasion and using its historic and financial ties to Israel and Palestine to play a greater political role in formulating a way out of the current impasse, the EU will simply sustain the status quo. (see also Scazzieri 2019) Moreover, despite efforts to show a unified response vis-à-vis the US, individual MS repeatedly diverged from what seemed to be (at first sight) a common EU position. For instance, in the context of Jerusalem, several MS (Latvia, Poland, Czech Republic, Hungary, Romania and Croatia) decided to abstain at the UN General Assembly in December 2017 (Lovat 2018; Wermenbol 2019). Furthermore, not only were the MS deeply divided over Trump’s plan, but several MS (e.g. Italy, Hungary, Austria and the Czech Republic) also managed to block a European unified response that aimed to condemn Trump’s deal (‘6 Countries Block EU Resolution That Would Have Condemned Trump Plan, Annexation’ 2020). Another example relates to the fact that both President Abbas and Prime Minister Netanyahu have tried to gain support in Europe for (in the case of Israel) or against (in the case of Palestine) Trump’s policies. While President Abbas was successful in obtaining support from Brussels (and MS such as Germany and France) which reiterated EU’s commitment to the two-state solution, Prime Minister Netanyahu’s attempts to find a sympathetic ear were more fruitful among the Visegrád (i.e. Hungary, Poland, Slovakia and the Czech Republic) and Baltic (i.e. Estonia, Lithuania and Latvia) states (Landau 2018; ‘Palestinians Turn to EU to Counter Kushner Plan’ 2019’; ‘Visegrád Leaders Say EU Must Show More Support for Israel’ 2017; Wermenbol 2019). Thus, the author agrees with Lehne (2017, p. 11) who maintains that “the EU has difficulty converting this investment on the ground into political influence because of divergent attitudes among member states” (see also Lovat 2018; Schultz 2017; Wermenbol 2019). What is more, this structural weakness in EU foreign policy is evidently being exploited by both Israeli and Palestinian leaders.

China’s Role in the Israeli-Palestinian Peace Process Soon after Mao Zedong proclaimed the establishment of the People’s Republic of China in 1949, China became a passionate supporter of the Palestinian cause.

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Essentially, China’s pro-Palestine stance was based on its general support for liberation struggles against imperialist powers, as well as its attempt to draw the support of the non-aligned states (Burton 2018; Evron 2017; Weng Hoong 2017). However, following the death of Mao in 1976 and the end of the revolutionary period, China’s foreign policy became somewhat more pragmatic and balanced. On the one hand, China has conducted several arms deals with Israel since the 1980s, and following the 1991 Madrid Peace Conference, both states established full diplomatic relations in 1992. Also, as China has started to focus its efforts on economic development and modernisation, it viewed Israel as a key source of technological innovation. Thus, while Beijing directed its efforts in condemning Israel in international forums like the UN, “[i]t has never imposed sanctions on Israel and its criticism of Israel’s military operations against the Palestinians has gradually abated” (Evron 2017, p. 131). On the other hand, despite strong Sino-Israel bilateral ties and flourishing trade and security cooperation, Beijing continued supporting the Palestinian cause. For instance, as early as 1988, China recognised the Palestinian state based on 1967 borders, with East Jerusalem as its capital. In 2006, it recognised the Hamas government in the Gaza Strip, as well as voting in favour of a Palestinian UN bid to become a non-member observer state in 2012. Finally, as a permanent member of the UN Security Council, China voted in 2016 in favour of condemning Israel’s building of settlements on Palestinian territory. Still, one might say that China’s contribution to the peace process was mostly symbolic. Indeed, on various occasions (e.g. in 1984, 1991, 2003 and 2013) China proposed to conduct international peace conferences or offered its own peace proposals. Yet, not only did China’s peace initiatives not have any impact, but China also showed little interest in engaging in the MEPP or actively promoting its peace initiatives (Burton 2018; Evron 2017; Yellinek 2017b). Now, focusing on China’s role since President Trump took office, it looks as if China has intensified its efforts in taking an active part in the MEPP. In March 2017, during a visit of Prime Minister Netanyahu to China, the Chinese President Xi Jinping stated that “peaceful coexistence between Israel and the Palestinians would be good for both parties and the region, and that it was favored by the international community.” When President Abbas visited Beijing a few months later (July 2017), Xi declared that “China hopes Palestine and Israel can achieve peace as soon as possible and live and work in peace. China will make unremitting efforts for this” (cited in Martina 2017). Xi also reiterated China’s commitment to and support for the two-state solution, and offered to launch a trilateral dialogue mechanism (with China as the mediator) with the aim of coordinating key assistance projects in Palestine (Yellinek 2017a). What is more, Xi presented Abbas with a new four-point peace initiative. Essentially, the four points are: (1) promoting the two-state solution; (2) upholding a common, comprehensive, cooperative and sustainable security concept; (3) coordinating and strengthening the international community’s efforts to solve the conflict; and (4) promoting peace through development (China’s Ministry of Foreign Affairs 2017; Chaziza

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2018). Finally, Xi announced that China would organise a peace conference by the end of the year (China’s Ministry of Foreign Affairs 2017). Following Abbas’ visit and President Xi’s new peace initiative, China’s ambassador to the UN urged the international community to “respond positively to the proposals made by China” (‘China Seeks Support for Israel-Palestinian Peace Plan’ 2017). Furthermore, as stated by President Xi in July, a Palestinian-Israeli Peace Symposium was indeed held in Beijing in December 2017. According to China’s Special Envoy to the Middle East, China organised the Symposium in order “to implement the proposals and initiatives of President Xi Jinping and to play an active and constructive role in promoting the settlement of the PalestineIsrael issue” (China’s Ministry of Foreign Affairs 2017). Essentially, besides its efforts to promote its own peace initiatives, China also expressed its disapproval of the American unilateral actions. For instance, in response to Trump’s decision to recognise Jerusalem as Israel’s capital, China voted in the UN Security Council to uphold the international consensus and previous UN resolutions on the status of Jerusalem. In the UN General Assembly, China also voted for a resolution that demands the US rescind its declaration on Jerusalem (Burton 2018). Similarly, commenting on the US declaration that Israeli settlements do not violate international law, China’s Assistant Foreign Minister stated that “the United States, the world’s only superpower … has pursued a selfish and unilateralist policy” (cited in “China Slams ‘Selfish’ US Middle East Policies” 2019). Also, following the decision by the American administration to cut financial aid to the Palestinians, China has offered to provide additional financial support to the Palestinians while encouraging other countries to support UNRWA (MEMO 2018). Finally, China did not send a representative to attend the economic workshop in Bahrain in 2019. Furthermore, responding to Trump’s peace plan, China’s Foreign Ministry Spokesperson underlined that any peace plan should take into account “the views and propositions of main parties concerned, especially the Palestinian side” (cited in ‘China: UN Resolutions Are Basis for Resolving Palestine-Israel Conflict’ 2020). In fact, China’s state-owned press agencies expressed a more critical approach, stating that it is “[no] wonder the US deal has received the cold shoulder from the international community as it only serves the US purpose of bolstering its ally and so strengthening its own influence in the region” (‘Washington’s Middle East Deal Too Biased’ 2020; see also Yu 2020). Against this backdrop, various commentators maintain that China has emerged as an actor in the Middle East while having the potential to play a key role in the MEPP. In the words of Legarda (2017): “[A]s the United States scales down its presence in the region … Beijing is moving to try and fill the power vacuum.” Also, it seems that China is in a perfect position to engage with the IsraeliPalestinian conflict since it does not carry the same historical baggage as other international actors (i.e. the US and European countries), and remains in good relations with both Israel and Palestine, as well as other regional actors. Thus, China could be considered as an honest broker in any future negotiations (Keinon 2017; Liang 2017; Siegel 2018).

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Notwithstanding the aforesaid, it should be noted that while the American unilateral policies might have strengthened Beijing’s position, it is by no means the main reason for China’s increasing interest in the region. Principally, one could underline four key reasons that could explain China’s increasing involvement in the Middle East. First, the Middle East (and Israel) plays an important role in the realisation of China’s flagship project, namely the Belt and Road Initiative (BRI). Involving more than 60 countries, the overarching aim of the BRI is to build vast networks and improve political, economic and cultural relations between China and its immediate and wider periphery. China is heavily invested in the BRI as it is tremendously important in economic terms (e.g. finding new markets). Now, since the Middle East is strategically located at the intersection between Asia, Africa and Europe, “[a]ny violent conflict in the Middle East might seriously damage this initiative and lay waste to an enormous investment” (Yellinek 2016). Second, the Middle East is of vital importance to China in the context of energy security. Given China’s economic growth and dependence on Middle Eastern oil, “China’s foremost interest … is securing continued access to the region’s energy resources” (Legarda 2017). Third, the rise of Islamist extremism and terrorist groups (e.g. ISIS) is of major concern to Beijing not only in relation to the stability of the region, but also since “Xinjiang’s Uyghur Muslim militias have expanded their goals [and] linking up with Islamic terror groups in the Middle East and Southeast Asia” (Weng Hoong 2017). Finally, China under President Xi aspires to become a global power and strengthen its image within the international community, in the words of Legarda and Hoffmann (2018): “China’s growing involvement in conflict mediation … helps play up the country’s self-crafted image as a responsible global power.” In this context, China’s approach to the MEPP was articulated by President Xi in a speech to the Arab League: Instead of looking for a proxy in the Middle East, we promote peace talks; instead of seeking any sphere of influence, we call on all parties to join the circle of friends for the Belt and Road Initiative; instead of attempting to fill the “vacuum”, we build a cooperative partnership network for win–win outcomes. (cited in Xi 2018)

American Unilateralism and Its Impact on the EU and China Noting the aforementioned, it is time to assess the questions that were posed earlier concerning the impact of the American unilateral approach on Europe and China’s role in the MEPP. Evidently, the EU and China’s involvement in the MEPP in the last few decades has been based on the objective of finding solutions through various multilateral frameworks. However, both have played a secondary (in the case of the EU) or even marginal (in the case of China) role in comparison to the US. Indeed, the US has also participated in multilateral efforts to solve the conflict. Still, as the world’s leading superpower, it took the “driver seat” in almost every peace initiative and political negotiation between Israel and

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Palestine.6 In fact, while the EU and China are considered to be strong supporters of multilateralism and view multilateral frameworks as key fora in the MEPP, the US has often regarded the multilateral track as secondary to the bilateral track. Thus, the US focused its efforts on the bilateral political track while confining the participation of other actors through the multilateral track to technical and nonpolitical issues. Against this background, we can reaffirm the argument put forward in the introduction of this book. Put differently, the American unilateral approach is not necessarily a new product that was introduced by the Trump administration, but rather a policy choice that fits American interests in the specific context of the MEPP. As such, it could be argued that given the traditional monopoly of the US as the lead mediator, President Trump simply followed suit in assuming a key role in the MEPP. Nonetheless, in comparison to previous American administrations, President Trump has been pursuing policies that openly disregard existing multilateral frameworks and international law, as well as the international consensus on the potential solution for the Israeli-Palestinian conflict. Now, to what extent have Trump’s policies influenced the EU and China’s role in the MEPP? Here, this contribution asserts that Trump’s controversial and unilateral policies have helped in highlighting the EU’s weak position and the everlasting internal divisions among the EU’s MS. In this regard, Malta’s Foreign Minister, Carmelo Abela, stated that “[w]e need to find the necessary political will, and we certainly must show more unity with regard to the Middle East Peace Process” (Ministry for Foreign Affairs of Malta 2018). Yet, there is no indication that the EU is able to counter US policies while playing a greater political role, in the words of Scazzieri (2019): “Europeans wish to keep the peace process alive, but lack the appetite to take concrete steps to preserve it.” What is more, it appears that the EU is well aware of the unreplaceable American role in the MEPP, in the words of (now former) HR Mogherini: I can say very clearly there is no initiative, no peace initiative, no attempt to restart peace talks between the Israelis and the Palestinians that can happen without an engagement from the US, but there can be no illusion from the US side that the US initiative alone would be successful. (EEAS 2017a) In the case of China, rather than viewing Beijing’s growing involvement in the region as a direct result of American unilateralism, it should be seen as part of President Xi’s foreign policy that seeks to advance China’s global aspiration as well as protecting its economic and security interests. In addition, taking into account China’s inexperience in Middle Eastern geopolitics, its poor record in international mediation and its fear of creating new adversaries, various analysts posit that China does not wish to play power politics in the region. Instead, China’s foreign policy should be seen as a way “to promote its status as a contemporary global power while softly challenging (but not actively undermining) the

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prevailing US order in the region” (Burton 2018; see also Chaziza 2018; Dorsey 2020; Liang 2017; Siegel 2018). As for the question of whether the EU and China can offer an alternative to US leadership, it seems that both actors do share a common objective, that is, to keep the MEPP alive based on the international community’s consensus. Furthermore, as stated by Lons (2019, p. 4): “Given China’s desire to keep its distance from Middle Eastern conflicts, Europe can be a useful partner due to its long-standing relationships … and deep understanding of the region that China still lacks.” Still, beyond European and Chinese official statements that criticise US policies and demonstrate their commitment to solving the conflict through multilateral frameworks, there is no evidence of any attempt by the EU and China to join forces with the aim of actively countering American unilateralism. Finally, it is also important to note that while the Palestinian leadership would have welcomed any other mediator to counter Trump’s policies, there was a slim chance that the EU and China would have been seen as legitimate mediators by the Israelis. In the case of the EU, considering Israel’s long-standing reluctance to take part in European peace initiatives, it is unlikely that Israel would have supported any proposal that originated in Brussels. As for China, it appears that Israel’s cooperation with Beijing is more of a courtesy than a real interest in its mediation. Indeed, Israeli officials welcomed China’s involvement in the region and praised its peace efforts (Chaziza 2018; Keinon 2017). Still, Israel was always rather reluctant to let China play an active role in the MEPP due to “China’s traditional pro-Arab, pro-Palestinian approach, and its strong relations with Iran and other Muslim countries in the Middle East” (cited in Liang 2017; see also Burton 2018).

Conclusion So far, the American unilateral approach has proved to be counterproductive at best and disastrous at worst. President Trump’s biased policies have diverted from the international consensus and violated international law. In so doing, the US attracted fierce criticism from the international community as well as managing to withdraw the Palestinian leadership from the negotiation table. That said, it is important to bear in mind that the American unilateral tendencies did not start with President Trump but are rather a prominent feature in the American approach towards the MEPP. Furthermore, as US policies started to diverge from the international consensus, there were growing calls that it is time for other actors to challenge the American monopoly as the key mediator in the MEPP. Still, as we have seen, that scenario never materialised. On the one hand, Trump’s policies further exposed the European structural flaw in foreign policy-making in general and in the context of the Israel-Palestinian conflict in particular. On the other, while China’s proactive attitude might appear at first sight as a direct response to Trump’s policies, it is, in fact, a result of a general shift in China’s foreign policy that started before Trump took office. Furthermore, not only did the EU and China not offer (individually

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or collectively) any alternative to Trump’s peace plan, but it also seems that both actors do not have the will or the capacity to replace the US. Now, as President Joe Biden assumed office on 20 January 2021, it is probable that the American administration will abandon Trump’s “deal of the century” and reaffirm its commitment to the international consensus regarding the solution to the Israeli-Palestinian conflict while highlighting the importance of multilateral efforts to resolve the conflict. As such, what lies ahead for the US-China-EU triangle in the context of the MEPP? Principally, it could be argued that a collaboration between the US, the EU and China as key mediators in the MEPP could bear fruit as the three actors do not only have similar concerns about political instability, terrorism and energy security, but also share an interest in making the Middle East a stable and prosperous region. Moreover, in light of their special relationship with the belligerents, they have the ability to put pressure on the Israelis and Palestinians to go back to the negotiation table and make difficult concessions. Nonetheless, it is highly questionable whether the US, given its everlasting monopoly as the key player in the MEPP, will give up (or even share) the spotlight as the leading mediator. What is more, the recent deterioration of relations between the US and China resulted in extensive American pressure on Israel to limit its engagement with China (Berman 2020; Kuo 2020; Mitnick 2020). Under these circumstances, it seems plausible to believe that the US will not “allow” China to take an active role in the MEPP. Muddying the waters even more, given the current domestic political turmoil,77 it appears that both the Israeli and Palestinian leaderships do not have the political capital to sell any American peace plan in the near future. Thus, while many were right to predict that Trump’s “deal of the century” will be “dead on arrival,” it would be much harder to anticipate what the future holds for unilateral or multilateral efforts to solve the conflict between the Israelis and Palestinians. Still, in comparison to the Trump era, there is a good chance that the international community’s consensus and international law will play a more prominent role in any future solution.

Notes 1 Comprised of the UN, the United States, the European Union and Russia. 2 Simplifying considerably, the two-state solution seeks to promote the creation of an independent state of Palestine alongside the state of Israel. 3 Specifically, US policy seems to be in violation of the following United Nations Security Council (UNSC) Resolutions: on just peace – UNSC Res 242 (22 November 1967) UN Doc S/RES/242; on the status of Jerusalem – UNSC Res 476 (30 June 1980) UN Doc S/RES/476; on the two-state solution – UNSC Res 1397 (12 March 2002) UN Doc S/RES/1397; on the settlements – UNSC Res 2334 (23 December 2016) UN Doc S/RES/2334. For the full text see United Nations Security Council, https://www.un.org /unispal/data-collection/security-council/ 4 Here, one could mention Senior Adviser (and Trump’s son-in-law) Jared Kushner, US Special Representative for International Negotiations Jason Greenblatt, US Ambassador to Israel David Friedman and Secretary of State Mike Pompeo.

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5 Prominent examples are US withdrawal from the Paris Agreement and the Joint Comprehensive Plan of Action (also known as the Iran Nuclear Deal). 6 Prominent examples include the 1991 Madrid Peace Conference, the 1993 Oslo Accords and the 2002 Road Map. 7 At the time of writing (May 2021), it is rather unclear whether Israel is heading for its fifth elections within two and a half years while President Abbas has recently decided to postpone the legislative elections until further notice.

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Keinon, H. (2017) ‘Are China and Japan the new peace process mediators?’, The Jerusalem Post, 27 December, available at https://www.jpost.com/Arab-Israeli-Conflict/Are -China-and-Japan-the-new-peace-process-mediators-520124 Kennedy, M. (2020) ‘EU Takes A Dim View Of Trump's Controversial Mideast Peace Plan’, NPR, 4 February, available at https://www.npr.org/2020/02/04/802635401/eu -takes-a-dim-view-of-trumps-controversial-mideast-peace-plan Klieman, A. (2016) ‘Israel and the US: Recalibrating in the Post-Obama, Pre-Trump Era’, Israel Journal of Foreign Affairs, 10(3), pp. 363–380. Konecny, M. (2018) ‘EU Must Stand up to Trump's Middle East 'Peace Plan', EUobserver, 30 October, available at https://euobserver.com/opinion/143251 Kuo, M.A. (2020) ‘US-China-Israel Relations: Pompeo’s Visit’, The Diplomat, 27 May, available at https://thediplomat.com/2020/05/us-china-israel-relations-pompeos-visit/ Kuttab, D. (2017) ‘Is Trump Palestine’s New Hope?’, Asia Times, 12 May, available at http://www.atimes.com/trump-palestines-new-hope/ Landau, N. (2018) ‘Baltic Leaders Affirm Support for Two-state Solution After Meeting Netanyahu, Stay Mum on Jerusalem’, Haaretz, 24 August, available at https://www .haaretz.com/israel-news/.premium-baltic-leaders-affirm-support-for-two-state -solution-1.6411974 Landler, M. (2017) ‘Trump at U.N. Talks Up, but Does Not Press, Mideast Peace’, The New York Times, 18 September, available at https://www.nytimes.com/2017/09/18/world/ middleeast/trump-at-un-talks-up-but-does-not-press-mideast-peace-qatar-persian-gulf -iran-nuclear-deal-.html Landler, M. (2018) ‘Kushner Says Punishing Palestinians Won’t Hurt Chance for Peace Deal’, The New York Times, 13 September, available at https://www.nytimes.com/2018 /09/13/world/middleeast/kushner-palestinians-israel.html Legarda, H. (2017) ‘China Global Security Tracker No. 1 February - July 2017’, The Mercator Institute for China Studies, 4 October, available at https://www.merics.org/en /merics-trackers/china-global-security-tracker-1 Legarda, H. and Hoffmann, M.L. (2018) ‘China as a conflict mediator: Maintaining stability along the Belt and Road’, The Mercator Institute for China Studies, 22 August, available at https://www.merics.org/en/china-mapping/china-conflict-mediator Lehne, S. (2017) ‘Is there hope for EU foreign policy’, Carnegie Europe, 5 December, available at https://carnegieeurope.eu/2017/12/05/is-there-hope-for-eu-foreign-policy -pub-74909 Lehrs, L. (2018) ‘The Quest for an Honest Broker in the Israeli-Palestinian Peace Process’, Mitvim, 7 June, available at https://www.mitvim.org.il/images/Lior_Lehrs_-_The _Quest_for_an_Honest_Broker_-_June_2018.pdf Liang, L.Y. (2017) ‘Experts split over China's moves on the Middle East following Trump's decision on Jerusalem’, The Straits Times, 12 December, available at https:// www.straitstimes.com/asia/east-asia/experts-split-over-chinas-moves-on-the-middle -east-following-trumps-decision-on Lons, C. (2019) ‘Introduction: China’s evolving role in the Middle East’, in C. Lons (ed.), China’s Great Game in the Middle East, European Council on Foreign Relations, pp. 2–10, available at https://www.ecfr.eu/publications/summary/china_great_game_middle _east Lovat, H. (2018) ‘Trump’s Challenge: What Can the EU Do to Prevent Escalation in Jerusalem?’ Heinrich Böll Stiftung Brussels, 19 June, available at https://eu.boell.org/ en/2018/06/19/trumps-challenge-what-can-eu-do-prevent-escalation-jerusalem

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Martina, M. (2017) ‘China's Xi Pledges “Unremitting” Efforts for Middle East Peace’, Reuters, 18 July, available at https://www.reuters.com/article/us-china-palestinians/ chinas-xi-pledges-unremitting-efforts-for-middle-east-peace-idUSKBN1A3176 MEMO (2018) ‘China donates $2m to UNRWA’ 2018, Middle East Monitor, 8 August, available at https://www.middleeastmonitor.com/20180808-china-donates-2m-to-unrwa/ Middle East Monitor (2020) ‘China: UN resolutions are basis for resolving PalestineIsrael conflict’, Middle East Monitor, 30 January, available at https://www .middleeastmonitor.com/20200130-china-un-resolutions-are-basis-for-resolving -palestine-israel-conflict/ Miller, A.D. (2020) ‘Middle East Peace Plan Is Donald Trump’s Ultimate Deal Fantasy’, Carnegie Endowment for International Peace, 3 February, available at https:// carnegieendowment.org/2020/02/03/middle-east-peace-plan-is-donald-trump-s -ultimate-deal-fantasy-pub-80962 Ministry for Foreign Affairs of Malta (2018) ‘EU needs to reclaim its significant role in the Middle East Peace Process’, Ministry for Foreign Affairs of Malta, 31 August, available at https://foreignaffairs.gov.mt/en/Government/Press%20Releases/Pages/EU-needs-to -reclaim-its-significant-role-in-the-Middle-East-Peace-Process.aspx Mitnick, J. (2020) ‘Why the U.S. Can’t Get Israel to Break Up With China’, Foreign Policy, 16 June, available at https://foreignpolicy.com/2020/06/16/us-israel-china-deals/ Mogherini, F. (2018) ‘Speech by HR/VP Mogherini at the Plenary Session of the European Parliament on EU-US Relations’, European Union External Action, 11 September, available at https://eeas.europa.eu/headquarters/headquarters-homepage/50310/speech -hrvp-mogherini-plenary-session-european-parliament-eu-us-relations_en Noack, R. (2017) ‘U.S. Allies Reject Trump’s Jerusalem Pronouncement as “Very Dangerous and Catastrophic”’, The Washington Post, 7 December, available at https:// www.washingtonpost.com/news/worldviews/wp/2017/12/06/its-catastrophic-u-s-allies -reject-trumps-expected-jerusalem-pronouncement/?utm_term=.565efea7f6fe Oppenheim, B. (2018) ‘Beyond Firefighting: An EU Strategy for Gaza’, Centre for European Reform, 29 June, available at https://www.cer.eu/insights/beyond-firefighting -eu-strategy-gaza Pardo S. and Peters, J. (2010) Uneasy Neighbours: Israel and the European Union. New York: Lexington Books. Rettman, A. (2019) ‘US and EU go separate ways on Israeli settlers’, euobserver, 19 November, available at https://euobserver.com/foreign/146641 Reuters (2018) ‘Germany Says Closure of Washington PLO Office Undermines Two-state Solution’, Reuters, 14 September, available at https://www.reuters.com/article/us-usa -trump-icc-germany/germany-says-closure-of-washington-plo-office-undermines-two -state-solution-idUSKCN1LU1IY Scazzieri, L. (2017) ‘Trump, Europe and the Middle East Peace Process: A Path out of the Quicksand’, June 2017, Centre for European Reform, available at https://www.cer.eu /publications/archive/policy-brief/2017/trump-europe-and-middle-east-peace-process -path-out-quicksand Scazzieri, L. (2019) ‘A Troubled Partnership: The US and Europe in the Middle East’, July 2019, Centre for European Reform, available at https://www.cer.eu/publications/ archive/policy-brief/2019/troubled-partnership-us-and-europe-middle-east Schultz, T. (2017) ‘European Union short on influence in Middle East diplomacy’, Deutsche Welle, 11 December, available at https://www.dw.com/en/european-union -short-on-influence-in-middle-east-diplomacy/a-41749601

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SCMP (2017) ‘China Seeks Support for Israel-Palestinian Peace Plan’, South China Morning Post, 1 August, available at https://www.scmp.com/news/china/diplomacy -defence/article/2104968/china-seeks-support-israel-palestinian-peace-plan Siegel, E. (2018) ‘Potential Peacemaker or Just Another Spectator?: China’s Relations with Israel and Palestine, and Its Prospect as a Broker for Peace’, The Yale Review of International Relations, January, available at http://yris.yira.org/comments/2249 Spetalnick, M. and Holland, S. (2019) ‘Exclusive: White House's Kushner Unveils Economic Portion of Middle East Peace Plan’, Reuters, 22 June, available at https:// www.reuters.com/article/us-israel-palestinians-plan-exclusive/exclusive-white-houses -kushner-unveils-economic-portion-of-middle-east-peace-plan-idUSKCN1TN0ES Tharoor, I. (2020) ‘Trump’s ‘Deal of the Century’ is no Deal at All’, The Washington Post, 29 January, available at https://www.washingtonpost.com/world/2020/01/28/trumps -deal-century-is-no-deal-all/ Telhami, S. (2019) ‘How Trump’s approach to the Middle East ignores the past, the future, and the human condition’, Brookings, 20 May, available at https://www.brookings.edu /blog/order-from-chaos/2019/05/20/how-trumps-approach-to-the-middle-east-ignores -the-past-the-future-and-the-human-condition/ The Guardian (2019) ‘Europe Must Stand by the Two-state Solution for Israel and Palestine’, The Guardian, 15 April, available at https://www.theguardian.com/world /2019/apr/14/europe-must-stand-by-the-two-state-solution-for-israel-and-palestine The Times of Israel (2018) ‘US Announces It’s Cutting All Funding to Palestinian Refugee Agency’, The Times of Israel, 31 August, available at https://www.timesofisrael.com/us -announces-its-cutting-all-funding-to-palestinian-refugee-agency/ TOI Staff (2018) ‘Palestinians Have Done Nothing but Beg, “badmouth” US, Haley Says’, The Times of Israel, 13 September, available at https://www.timesofisrael.com/ palestinians-have-done-nothing-but-beg-badmouth-us-haley-says/ TOI Staff (2020) ‘6 countries block EU resolution that would have condemned Trump plan, annexation’, The Times of Israel, 4 February, available at https://www .timesofisrael.com/eu-reportedly-blocked-from-resolution-condemning-trump-plan -annexation/ Weng Hoong, N.G. (2017) ‘China, the Wild Card in the Israel-Palestine Peace Process’, Asia Times, 4 March, available at http://www.atimes.com/china-wild-card-israel -palestine-peace-process/ Wermenbol, G. (2019), ‘The EU and the Israeli-Palestinian Peace Process in a PostMogherini Era’, Carnegie Endowment for International Peace, 3 October, available at https://carnegieendowment.org/sada/79985 White House (2019) ‘Peace to Prosperity, The Economic Plan: Programs and Projects’, available at https://www.whitehouse.gov/peacetoprosperity/ White House (2020) ‘Peace to Prosperity: A Vision to Improve the Lives of the Palestinian and Israeli People’, available at https://www.whitehouse.gov/peacetoprosperity/ Wildangel, R. (2018) ‘The European Union and the Israeli-Palestinian Conflict: From Declaration to Action?’, in P. Lintl (ed.), Actors in the Israeli-Palestinian Conflict: Interests, Narratives and the Reciprocal Effects of the Occupation. SWP Research Paper 2018/RP 03, Berlin, Germany: German Institute for International and Security Affairs, pp. 32–42. Xi, C. (2018) ‘China in the Post-Hegemonic Middle East: A Wary Dragon?’, E– International Relations, 22 November, available at https://www.e-ir.info/2018/11/22/ china-in-the-post-hegemonic-middle-east-a-wary-dragon/

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Xinhua (2020) ‘China Stresses Palestinian Views as Trump Unveils Middle East Peace Plan’, Xinhua, 29 January, available at http://www.xinhuanet.com/english/2020-01/29 /c_138741986.htm Yellinek, R. (2016) ‘China’s New Position on the Middle East’, The Begin-Sadat Center for Strategic Studies, BESA Center Perspectives Paper No. 363, 11 September, available at https://besacenter.org/perspectives-papers/363-yellnik-chinas-new-position-middle-east/ Yellinek, R. (2017a) ‘Is China Intervening in the Israeli-Palestinian Conflict?’, The BeginSadat Center for Strategic Studies, BESA Center Perspectives Paper No. 558, 13 August, available at https://besacenter.org/perspectives-papers/china-israel-palestinians/ Yellinek, R. (2017b) ‘Trump’s Recognition of Jerusalem: The View from Beijing’, The Begin-Sadat Center for Strategic Studies, BESA Center Perspectives Paper No. 699, 27 December, available at https://besacenter.org/perspectives-papers/trumps -recognition-jerusalem-view-from-beijing/ Ynet (2018) ‘EU warns Trump on Mideast peace plan’, Ynet news, 19 December, available at https://www.ynetnews.com/articles/0,7340,L-5429013,00.html Yu, G. (2020) ‘”Deal of the Century” neither Just nor Sensible’, China Military, 7 February, available at http://eng.chinamil.com.cn/view/2020-02/07/content_9735721.htm

Conclusion Multilateralism in Peril? Frank Gaenssmantel, Francesco Giumelli and Chien-Huei Wu

Introduction This project set out to investigate the current role and future prospects of multilateralism in international affairs. In the preceding chapters a team of political scientists and lawyers, with expertise in different branches of international politics and international law, have “felt the pulse” of various multilateral institutions, with a view to drawing broader conclusions on multilateralism at the end of the volume. Part 1 focused on global multilateral institutions, bodies and specialised agencies of the United Nations (UN). This included the United Nations Educational, Scientific and Cultural Organisation (UNESCO), the United Nations Convention on the Law of the Sea (UNCLOS), the main multilateral treaties on humanitarian law, the Human Rights Council of the United Nations (UN) and finally the World Health Organization (WHO). We then turned to global multilateral institutions in the realm of economic, social and environmental cooperation and proposed analyses of the World Trade Organization (WTO), the International Monetary Fund (IMF), the International Labour Organization (ILO) and climate change cooperation with a special focus on the Paris Agreement. In Part 3 the book examined several initiatives of multilateral cooperation on regional security. Our contributors here scrutinised the Association of Southeast Asian Nations (ASEAN) Regional Forum (ARF), the recent cooperative initiatives around the North Korea nuclear issue, the Iran Nuclear Deal and the latest developments in the Middle East Peace Process. The research and writing by the contributors were done when Donald Trump served as president of the US and under the impression of the foreign policy of his administration placing the US in opposition to its partners in many multilateral fora. In some cases, this even meant that the US formally withdrew from treaties or organisations. Given the special role of the US in the development and existence of multilateral institutions, these policies of the Trump administration generated grave concerns about the future of multilateralism. While it is legitimate and important to worry about the effects of radical shifts in the foreign policies of powerful actors like the US, it would be wrong to reduce the challenges to multilateralism to the policies and preferences of a single government, or even a single leader. As already discussed in the introduction to this volume, DOI: 10.4324/9781003167358-18

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US discontent with many of the multilateral institutions it had contributed to creating goes back to the years immediately after the end of the Cold War (if not further, as in the case of UNESCO), and the predecessors of President Trump already expressed their grievances, though clearly none of them as radically and aggressively as he did. It is also not only an issue of the orientation of the US. The rise of the so-called emerging powers, most famously represented under the acronym BRICS (for Brazil, Russia, India, China and South Africa), has changed the dynamics in many multilateral institutions, and cast doubts on their viability. Similarly, the relations between the US and many of its allies have evolved over time, and differences in their respective policies and preferences can also influence multilateral settings. The analytical framework for the contributions was designed to capture this complex set of challenges that multilateralism is currently facing. Aside from the obvious focus on the US as a conflicted former hegemon, this meant a strong emphasis on China and the European Union (EU). China is the example par excellence of an emerging power that has been able to increase its presence in international affairs to such an extent that it can no longer be disregarded in any multilateral setting and can influence institutions even when it is not a member itself. The EU, by contrast, epitomises the dilemma that relative US decline represents for its traditional allies. In virtually all international venues the EU is caught between the desire to continue the traditional transatlantic partnership and the need to develop an independent stance, given the doubts about US commitment to transatlantic partnership. With these three players and their triangular interactions at the heart of the analysis, the contributions to this volume provide insights on multilateralism that go beyond the impact of the Trump presidency or the consequences of the changing position of the US. In fact, they go beyond any single actor in international affairs, and capture recent trends in multilateralism in general. In the introduction to this volume we developed a conceptual approach to multilateralism that builds on Ruggie’s seminal idea of multilateralism as not only about “groups of three or more states,” but also “principles of ordering relations among those states” (Ruggie 1992, p. 567). Placing this approach in the context of more recent writings on multilateralism and developments in multilateral institutions, we identified a series of issues and questions that could enhance our understanding of the current and future prospects of multilateralism. We complemented these conceptual considerations with some specific queries on the US, China and the EU, their policies and positions vis-à-vis multilateralism, the triangular relations between them in specific multilateral settings, as well as the relevance of these interactions for the institutions in question and possibly also international order at large. On the following pages, we will attempt to summarise the main findings from the three parts of this volume. We will start from the three actors, their policies vis-à-vis multilateral institutions and their interactions in such settings. In a second step, we will propose some broader conclusions on the state and development of multilateralism in relation to the conceptual discussion in the introduction.

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The US, China and the EU in Multilateral Settings The three actors we have been focussing on in this volume display a variety of approaches to multilateralism and to each other in the multilateral institutions covered in this volume, ranging from assertiveness and competition to disinterest and mutual disregard. In some cases in the same institutions one can observe different attitudes and dynamics in very brief succession. In the following paragraphs we will sum up the major trends in US, Chinese and EU approaches to the various multilateral settings covered in this volume and the dynamics of their interplay. Part 1 of this edited volume addresses the practice of multilateralism in various UN agencies and regimes. Lucas Lixinski in Chapter 1 approaches UNESCO (particularly the 1972 World Heritage Convention, but also the 2003 Intangible Cultural Heritage Convention) and appreciates the variations in strategies of engagement by the three key actors: the US, the EU and China. The story of UNESCO is particularly telling, not only because of the US’s withdrawal and re-joining time and again, but also because of the organisation’s cultural ramifications. Through the UNESCO and relevant international cultural heritage law, regimes and processes, countries are pursuing a new standard of civilisation that offers countries different ways of seeing the world and wanting to be seen. As Lixinski writes, “Heritage diplomacy is a fruitful means of thinking about multilateralism, particularly inasmuch as multilateralism is at least in some respects a competition for hegemony, and hegemony requires civilisational leadership” (see p. 32). From this perspective, Lixinski argues that, whereas the EU uses the World Heritage system to promote heritage within Europe and beyond that reminds the world of the breadth of European powers historically, China has aggressively pursued the addition of its sites to the World Heritage List as a means of selectively showcasing its own cultural heritage to the world, and the US departure from UNESCO shows its unwillingness to engage with a changing landscape that embraces contested statehood. Lixinski cautions that, whereas the leadership vacuum due to the US’s withdrawal may present an opportunity for the EU, the EU has to refrain from projecting its own civilisational agenda onto UNESCO. Also, the withdrawal of the US from UNESCO may result in further politicisation within the institution. Similar to UNESCO, the Human Rights Council is one of the most politicised fora in which the US and China compete for influence, and in which the EU has difficulties with positioning or allying itself. From time to time, Asian values are cited as a justification for China to deviate from, re-interpret and finally reshape international human rights norms. Yu-Jie Chen in Chapter 2 uses this highly politicised UN agency to illustrate how China, as a non-liberal and nondemocratic emergent power, aims to reshape global norms on human rights and how the US, the one that has contributed to their current shape and form, is challenged and has become unsatisfied with its course of development and eventually left the forum. With the US withdrawal from the Human Rights Council, the EU, as an observer, is compelled to confront Chinese efforts to detract or destruct the

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integrity of human rights norms by introducing the concept of “human rights with Chinese characteristics.” Chen observes that the world is witnessing a US that is beginning to disengage from the multilateral human rights system, a China that seeks to advance an agenda that conflicts with traditional human rights principles and an EU that struggles to preserve the rule- and rights-based international order undermined by this push and pull on the part of the US and China. She cautions that “engagement and cooperation, the oft-mentioned strengths of the international human rights system, do not appear efficacious with present-day China” (see p. 46) and argues that this set of new dynamics is destabilising the traditional multilateral human rights framework. In her analysis of the WHO (Chapter 3), Nadine Voelkner shows how over the past 20 years the US has managed to push a securitised approach to global health, whereby infectious diseases are understood as international threats, and how this contributed to the creation of some discretionary authority for the WHO, i.e. independent from member states, in addressing global health emergencies. It is noteworthy that this new trend unfolded in times of declining US hegemony, and that China, whose presence and influence in the organisation have been growing in the same time period, has not expressed any general opposition to it, despite its traditional emphasis on state sovereignty. The EU has shown a strong regional (i.e. European) bias in its priorities for international health governance, but nevertheless always remained actively committed to multilateral approaches. The Covid-19 pandemic has demonstrated that the WHO, notwithstanding the new competences, remains dependent on support from member states. The combination of scathing criticism and withdrawal on the part of the US under Trump, Chinese reluctance to share information on the origins of the virus and sharp mutual accusation between the two sides has complicated effective multilateral coordination on the pandemic and weakened the organisation. This recalls the fragility and uncertainties of the current arrangements of global health governance with the WHO at the centre. However, Voelkner posits that there may be more room for cooperation amongst the US, China and the EU, and other actors, in this issue area than suggested by the rough rhetoric around Covid-19. In Chapter 4, Lijiang Zhu offers a comparative analysis of the attitudes of the five permanent members of the UN Security Council towards the international humanitarian law treaties. According to Zhu, humanitarian multilateralism aims at bringing humanity and justice into armed conflicts, and to realise this objective, it necessitates a network of international legal regimes and international organisations. Nations have continuously moved towards this goal, but great powers tend to exempt themselves from this trend. Zhu finds that among the five permanent members of the UN Security Council (P5), there is a clear division between the US, Russia and China on one side and the UK and France on the other, in terms of their attitudes to international criminal justice, landmines and cluster munitions. However, he also finds that, for nuclear weapons, the P5 show a common sense of exception from the provisions of the new Treaty on the Prohibition of Nuclear Weapons, and more generally attempt to create a great power exception to this multilateral legal regime. However, Zhu cautions that one

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should not exaggerate these exceptions of the P5 to the multilateral humanitarian treaties, in particular the US, Russia and China. “Only when a humanitarian treaty affects the fundamental concerns of the P5 will they be reluctant to be a party to it” (see p. 83). In Chapter 5 Chen-Ju Chen traces the dynamic between multilateralism and unilateralism in the development of the law of the sea. Chen observes that multilateralism in the law of the sea has been the dominant trend to which from time to time unilateralism may pose a challenge. Multilateralism in the law of the sea is manifested in the 1982 UN Convention on the Law of the Sea framework and its subsequent agreements. In the context of the UN Convention on the Law of the Sea, the EU is a firm supporter for this multilateral framework whereas the US and China appear ambivalent. Chen observes that both the US and China display a certain degree of multilateral selectivity. Turning to the South China Sea, Chen examines different positions adopted by the US, China and the EU. The US emphasises freedom of navigation, the EU maritime security and rules-based order and China, of course, its sovereign claims. These divergences are vividly reflected in their attitude towards the South China Sea arbitral award. The EU and the US have repeatedly called on China to comply with the award; China by contrast has continuously denied the legitimacy of the arbitral tribunal and legal validity of the award. Chen opines that, in the context of the law of the sea in general and South China in particular, both the US and China are tempted to act with a unilateralist logic. The difference is that China is pursuing the goal of becoming a naval superpower while the US is attempting to interact with it and to constrain China’s influence in the rest of Asia. Seen in this light, the EU turns out to be the only supporter for multilateralism in the law of the sea. Shifting the focus to the economic, social and cultural dimension, Lukasz Gruszczynski opens Part 2 with Chapter 6 where he addresses the current crisis of the multilateral trading system. The crisis has become painfully obvious in the trade war between the US and China since the early months of the Trump administration. It has been exacerbated by the Trump administration’s decision to block the appointment of new members of the Appellate Body (AB). The US first complained about some purported procedural irregularities in the WTO dispute settlement process, notably some AB members’ participation in the appeals after the expiry of their term of office without seeking prior approval from the Dispute Settlement Body (DSB). Later, the US pointed to a number of systemic issues relating to the overall functioning of the AB, in particular the alleged judicial activism embraced by the AB. Gruszczynski nonetheless argues that the real reasons behind this decision were different from those offered by the country during the DSB meetings. According to Gruszczynski, the Trump administration might have attempted to freeze the WTO dispute settlement mechanism as it could potentially have restricted the freedom of the US to implement its unilateralist trade policy. Paradoxically, whereas China may take advantage of this crisis and strengthen its position in the WTO, it may also retaliate against the US, in response to US punitive trade measures. Gruszczynski thus argues that seemingly China has not decided its trade policies in general and its position towards the

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WTO dispute settlement mechanism in particular. The most difficult position is that of the EU, as it strives to preserve the integrity of the WTO dispute settlement mechanism while at the same time proposing and establishing a temporary alternative, the Multiparty Interim Appeal Arbitration Mechanism. Meanwhile the US challenge persists nonetheless: for the moment, the Biden administration does not seem interested in deviating on this matter from the position taken under Trump. In Chapter 7, Saliha Metinsoy argues that in the IMF Trumpian unilateralism and protectionism have played a fairly limited role, but nevertheless some underlying trends have affected the organisation and the interaction between the US, China and the EU. The US has been using the IMF, for over two decades, as a platform for criticism of China’s macroeconomic policies, in particular regarding its exchange rate. It has done so from its privileged position, especially in terms of voting rights, which has not undergone any major changes and is not likely to change any time soon. Still, the actual influence of the US may be diminishing, as visible for example in the shift to more Keynesian ideas in the IMF, but also in the eventual ratification by the US Congress in 2015 of the 2010 quota reforms and in the inclusion of the RMB in the Special Drawing Rights (SDR) basket in 2016. For China these developments facilitated a more positive attitude towards the IMF, after years of critical rhetoric that emphasised the needs of developing countries. In contrast to China, the EU has been critical of the new orientation of the IMF, and it has started to develop its own regional mechanisms for crisis funding in the context of the Eurozone crisis. In a challenge to the IMF (at least rhetorically) the idea of a European Monetary Fund (EMF) has been discussed, but without any concrete institutional initiatives, at least so far. Despite these contrasting positions of the three actors at the centre of our project, Metinsoy finds that “these tensions do not seem to reach the fundamental principles and institutional features” of this institution (see p. 145). In Chapter 8, Herman Voogsgeerd discusses the role of international labour standards (ILSs) in free trade agreements (FTAs) and how ILSs contributed over time to growing tensions between the US, the EU and China in the International Labour Organization (ILO). The proliferation of FTAs led to sharp re-allocation of resources so that new demands emerged to mitigate the impact of new FTAs. Especially from the US and the EU, labour standard criteria were added to FTAs. The author investigates, thanks to the five criteria proposed by Rodrik, how the demand for ILSs came primarily from the US and the EU while China has paid less attention to this matter. This situation, which emerged from the analysis of two international trade agreements between the EU and Japan and the USMCA, confirms that developed countries (namely the US and the EU) are increasingly relying on ILS clauses in trade agreements as a demonstration that requests for a level playing field are playing a role in these processes. However, the chapter shows how China has resisted the pressure to openly discuss ILSs in the Belt and Road Initiative, which means that tensions are likely to rise in the future between the US, the EU and China on this matter. This conclusion suggests that the Trump administration did not affect the traditional transatlantic alliance on this point.

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In Chapter 9, on climate change cooperation, Yaroslava Marusyk shows that Trump’s radical decision to leave the Paris Agreement had almost no negative, and actually a series of positive, effects on cooperative initiatives to combat climate change, and more broadly on the implementation of the agreement. For the other two actors treated in this volume, China and the EU, the US withdrawal created more room for engagement and bilateral cooperation, and the opportunity to affirm themselves as global climate leaders. This suggests that in the field of climate change and clean energy, China cannot be considered a revisionist power, and that its interests and visions overlap to a very large extent with those of the EU. For international efforts to address climate change this implies that the uncertainties of US domestic politics (also in view of the next presidential elections) have far less impact than many feared originally – even though it is undoubtedly positive that President Biden decided to re-join the Paris Agreement and to undertake sustained efforts to tackle climate change. This chapter also makes a compelling argument on the role of non-state actors. With their emergence and their decisive impact in terms of reaching the goals of multilateral agreements, the role of core actors like the US, China and the EU, and the impact of their interaction, has become far less central and decisive than generally assumed in the past and in the (state-centric) conceptual introduction to this volume. Part 3 on multilateral settings that address regional security affairs starts with an analysis of the ARF. Ja Ian Chong’s analysis (in Chapter 10) demonstrates the effects of major power disinterest, rather than friction, and how it can contribute to rendering a multilateral initiative largely ineffective. Chong argues that the ARF has failed as a platform for managing security issues in North and Southeast Asia as originally intended. Instead it has become a stage for airing lofty ambitions and a diplomatic forum to produce mini-lateral mechanisms as ad-hoc solutions to deal with minor issues. While both the US and China are formally participants of the ARF, neither of them has shown any particular commitment to this mechanism, nor have they used it actively to address any of their own security concerns. The EU, by contrast, has not been able to play any active role in security affairs so far away from Europe. Aside from disregard on the part of major powers, the “ASEAN Way” and its focus on sovereignty have also contributed to a general reluctance to rely on such a multilateral institution. In Chong’s view this may have negative implications for regional security, in particular as non-major powers do not have any institutional space that would allow them to contribute to regional security governance without siding with one of the major security actors. Continuing on regional security issues, Chapter 11 proposes an analysis of how the three actors at the core of this volume have behaved, and whether they changed their sanctioning policy, in the context of the diplomatic initiative by US President Trump vis-à-vis North Korea. Despite the new dynamics amongst top leaders, the US continued its thorough implementation of sanctions imposed by the UN and the US government itself. By contrast, China reacted to the diplomatic opening of the US to North Korea by relaxing its implementation of UN sanctions. One could argue that from the point of view of trilateral interaction this set two possible precedents for the EU: follow the US or move closer to China. In contrast to what

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was observed in Chapter 9 on climate change, here the EU remained close to the US and pursued its established sanctions policy, including both UN sanctions and the EU’s own restrictive measures. On this basis, Francesco Giumelli suggests that in the realm of traditional security the EU is still strongly inclined to follow the US, even though it has shown that it is prepared to take a more and more independent stance in more and more (other) fields. He also emphasises that the EU had neither the capabilities nor the credibility amongst regional actors to adopt its own policies on the issue. This can be seen as a confirmation of the well-known limitations of EU actorness in the military field. It also underlines, once again, the very European focus of the EU and how difficult it is for the EU to project its influence to distant regions. The third security issue discussed in Chapter 12 pertains to the (perceived) threat posed by the Iranian nuclear programme. After presenting an overview of the negotiations that led to the signing of the Joint Comprehensive Plan of Action (JCPOA) in 2015 and the withdrawal of the US in 2018, Agha Bayramov and Mustafa Ali Sezal analyse how China and the EU have dealt with the decision of the US to leave the agreement with the objective of drawing conclusions on the nature of multilateralism today. The chapter proposes a twofold argument. On the one hand, the EU and China attempted to enhance their international role by filling the gap left by the US and keeping the JCPOA alive. On the other, the effectiveness of how the EU and China can fill the gap left by the US is mediated by the role of private actors, namely firms based in the EU and China. This chapter shows that the nature of multilateralism in the 21st century is dependent not only on the willingness of states, but also on that of private actors. Overall, while many have analysed the withdrawal of the US as a decision to leave a particular multilateral scenario, Bayramov and Sezal show that the relations between the US, the EU and China in the context of the nuclear programme mirror the nature of their relations in international affairs at large, and not vice versa. The final topic discussed in the volume is the Middle East Peace Process in Chapter 13. Mor Sobol discusses how the US, the EU and China had similar policies towards the Israeli-Palestinian conflict for a long time, in that all three supported the UN efforts and decisions, and how the Trump administration decided to break away from this tradition and pursue its policy of a “deal of the century” policy. Whereas unilateral tendencies in American foreign policy are not exclusive to the Trump administration, the strongly pro-Israeli inclinations of President Trump marked an important difference from the EU and China. The chapter discusses how the EU and China reacted to the shift in US foreign policy and whether they succeeded in providing viable alternatives. On the one hand, the EU failed to step in and play a more influential role, and on the other, China appeared to become more proactive in response to US decisions. However, this seems to be mostly related to China’s broader strategic outlook rather than a specific reaction to Washington in the Middle East. In any event, the chapter holds that neither the EU nor China managed to provide viable alternatives to the approach suggested (and enacted) by the United States. Overall, the trilateral arrangement upon which multilateralism is constructed in the peace process is

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heavily reliant on the role of the US and, according to the author, this is not likely to change in the near future. Despite the great diversity amongst these cases of multilateral settings in which the US, China and the EU interact, a few major trends emerge. Firstly, despite instances of substantial damage (as for example in the case of the Iran Nuclear Deal) generally the impact of the Trump administration has been far more limited than the rough rhetoric (both by the US governments and its international counterparts) led observers to believe initially. Trump notwithstanding, and regardless of the travails of a declining hegemon, the US remains one of the most powerful actors (and probably the single most powerful actor for now) in virtually all multilateral institutions, both globally and regionally. If this shows continuity, the second trend has to do with changes: the chapters have confirmed that China has moved centre stage in virtually all multilateral settings in which it takes part. In these settings China has not simply been socialised to “function” in line with established norms and procedures. Instead it actively promotes its own ideas and interests, and it has also developed a broader rhetoric of empowering nonWestern, underprivileged members of the international community. A third, and somewhat counterintuitive, conclusion is that this juxtaposition of hegemon and powerful challenger does not only lead to tension and disruption. In some settings (see chapters on the WHO and IMF) there are signs of a shared commitment to existing governance arrangements, including both institutional structures and certain normative aspects. Fourthly, and rather unsurprisingly, the EU’s role and influence in the various multilateral institutions covered are far more heterogeneous than for both the US and China. To a large extent this has to do with the nature of EU foreign policy. The EU is itself a regional organisation, created by the states of a region to handle regional affairs, and this explains its difficulties with reaching out to geographically distant places. As an organisation created by states, the EU also has only the competences and capabilities that member states agreed to invest it with. In the realm of military affairs members have been comparatively reluctant to empower the EU, which has created severe limitations for EU participation in multilateral initiatives in traditional security affairs. More generally, the EU is internally divided on almost all imaginable issues and this oftentimes makes it hard to take a strong stance in international fora. On top of all this, the EU is also divided between a continuing tendency to seek transatlantic agreement and the growing awareness that it needs to find its own stance in international affairs. Notwithstanding all this, as a fifth point it should be added that of the three actors covered in this volume, the EU remains the most consistent supporter of established multilateral rules and institutions.

The State of Multilateralism What do these broader trends in major actor behaviour and interaction, in combination with the rich evidence of the 13 cases of multilateral institutions treated in this volume, tell us about the current state of multilateralism and its

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prospects? By picking up concepts from the introduction and related findings from various chapters, we will attempt to draw some conclusions on this in the paragraphs that follow. This is a delicate undertaking. Actors’ beliefs and preferences vary in function of the issue areas covered, the geographical scope, the presence of other actors and other factors, and interactive dynamics depend on the social settings in which they unfold. The chapters in this volume bear witness to the great diversity in how multilateralism manifests itself and how it has been developing. Still, we do believe that a few broader insights about multilateralism emerge from the rich case-specific evidence presented in this volume. It is obvious that the expanding membership of many multilateral institutions since the end of the Cold War has also been at the origin of numerous frictions. China’s increasingly confident participation in such institutions demonstrates this beautifully, for example in its rhetoric at the IMF (until the mid-2010s) that was critical of the established lending practice and emphasised the needs of developing countries. At the same time, it should not be taken for granted that such frictions are profound and threaten the normative basis of the multilateral institution in question. In fact, in the very case of the IMF, the recent shift on the part of China towards outspoken support for the Fund’s policies might suggest broad agreement amongst key players (despite some EU dissatisfaction) about the underlying principles, and probably in a very Ruggiean sense regarding the indivisibility of common goods and the expectation of diffuse reciprocity. This could then be seen as a confirmation that multipolar multilateralism, without a single hegemon but with broad normative agreement among core players, is possible, even though it is not yet clear to what extent such a situation can be durable. The case of the WHO also suggests a degree of normative proximity, in that China as a new core actor has not engaged in any strong criticism of the US-pushed securitisation of global health risks and the related creation of new competences for the WHO, which it can exercise independently from its members. However, it would probably be premature to place this also in the category of multipolar multilateralism. The traditional Chinese emphasis on sovereignty and the recent example of Chinese reluctance to share information on the first Covid-19 outbreak in Wuhan may indicate that some quite fundamental divergences remain as compared to the US and the EU. While such instances of normative agreement, and even multipolar multilateralism, are encouraging, this is by no means the norm. The introduction to this volume suggested the term “diffuse” multilateralism for instances with a limited degree of normative agreement, and some of the multilateral institutions treated in the chapters seem to fall under this category. In the case of the SixParty Talks and the most recent diplomatic dynamics under Trump regarding the North Korea nuclear issue, the different courses of action of China on the one hand and the US and the EU on the other can be read as evidence of different perspectives on the normative content of the nuclear non-proliferation regime, and the situation does not bode well for any future attempts at enforcing it. The example of the ARF also shows the risks of diffuse multilateralism. The simple respect for sovereignty (in the “ASEAN Way”) does not seem to be enough as a

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normative basis for the joint creation of common goods or even as a framework for diffuse reciprocity. For the ARF this may have contributed (in combination with major power neglect) to the degeneration towards some loose diplomatic forum, that is multilateral largely in a numerical sense. Another trend in multilateralism that deserves mention here is that towards the involvement of non-state actors. The case of the Paris Agreement, and multilateral cooperation on climate change, demonstrates that most explicitly. While strengthening cooperation between China and the EU, and also the return of the US under President Biden to an ambitious policy agenda on this matter, suggest a tendency towards agreement amongst core players (despite outliers like the US under Trump), the agreement they managed to bring about in Paris remained vague, leaving a large degree of discretion to governments. Nevertheless, the momentum to implement initiatives to counter climate change was created by non-state actors, including public entities at municipal, provincial and regional level, but also private actors like non-governmental organisations and businesses. The role of firms in efforts to save the JCPOA after the departure of the US also shows the growing importance of non-state actors. This would suggest that multilateralism in the Ruggiean sense, based on states’ commitment to fundamental ordering principles, is not a necessary condition for successful multilateral cooperation. Whether cooperation is promoted by a hegemon or by a group of core actors as in multipolar multilateralism also seems to matter only to a limited extent. Even if there is only a shallow normative basis, this is not necessarily a problem as long as there is a sufficient quality and density of nonstate actors that can enact multilevel multilateralism to fill the gaps left by states.

Not in Peril, but… The title of this volume asks whether multilateralism is in peril, and the conclusion should naturally return to this. In a radical summary of the chapters and discussion in the conclusion so far, the short answer would probably have to be “no,” but with the caveat that multilateralism is undergoing very profound changes which may possibly lead to the disruption of certain multilateral settings. Even though relatively clear and simple, short answers tend to be incomplete and unsatisfactory, so a few more comments are appropriate here. If the short answer affirms that multilateralism is fundamentally not in peril, this is to say that multilateral institutions that include shared normative commitments are continuing to thrive, despite US decline, Trumpian anti-multilateralism, China’s rise and the inconsistencies of EU foreign policy. This is the good news. However, if we elaborate a little more on the caveat and the profound changes in multilateralism, then a few more problematic points emerge. The first point is that in a more multipolar world normative agreement has become more challenging than with a single hegemonic leader. Put differently: multipolar multilateralism is more difficult to achieve than hegemonic multilateralism. There are many instances of contested norms in multilateral institutions, and normative agreement seems to have become narrower in various institutions and therefore multilateralism more

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diffuse. In extreme cases such a trend may lead to the degeneration of a multilateral institution to a simple forum for diplomatic exchange, with no specific normative underpinnings, or possibly even its complete disappearance. The second point to make about change has to do with the role of non-state actors. The emergence of multilevel multilateralism may render state-centric multilateralism less and less relevant in the future. While the example of the Paris Agreement and climate change nicely illustrates this, some caution is necessary. Not in all issue-areas and all regions do we find a similar degree of broadly shared goals, comparable concern and involvement of civil society, business opportunities or more generally such a density of highly diverse actors that are both motivated and capable of contributing. Nevertheless, this does not mean that multilevel multilateralism cannot happen in other contexts. Taking all this together, one could claim that the current transformations of multilateralism resemble a process of emancipation. It can be seen as an emancipation from the US as sole hegemon and more broadly an emancipation from Western domination in many multilateral institutions. In addition to this, it may even be an emancipation from the state-centric origins of multilateralism. But whether or not the metaphor of emancipation does justice to the process of change that multilateralism is currently undergoing: while we can identify current trends, we cannot predict the further development or any final outcome. So not only further research will be needed but also patience.

Index

Abbas, M. 244, 249–251 Abraham, T. 61 Agenda on Sustainable Development (2030) 173 Ahmadinejad, M. 229 Albright, M. 230 Alston, P. 154 American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) 160 American trade policy 109–111 American unilateralism: China, impact on 252–254; European Union, impact on 252–254 Ami, B. 247 anti-money laundering legislation and combating the financing of terrorism (AML/CFT) 133, 134 Appellate Body (AB) of World Trade Organization 111; appointment of members 113; number of members 112; US and 109, 111–115 Araghchi, A. 233 Arms Trade Treaty (ATT) 77–79 ASEAN Charter 200 ASEAN Defence Ministers’ Meeting Plus (ADMM+) 193, 201 ASEAN Way 194, 195, 200, 201 Asian Infrastructure Investment Bank (AIIB) 10, 234 Asia-Pacific Economic Cooperation (APEC) 195 Asia Reassurance Initiative Act (ARIA) 96 assertive multilateralism, defined 230 Association of Southeast Asian Nations (ASEAN) 12, 193; aims and aspirations of 194–196; areas fallen 196–198; ASEAN members of 200; confidence-building measures 195,

197–199, 201; conflict resolution 196; explanations for limitations of 198–201; institutional design of 198–199; member states 197; ministerial meetings 196; preventive diplomacy 196–199, 201; regional security, shadow over 201–203; signature activities for 196; underinstitutionalisation of 203 Avian influenza see bird flu Bali Concords 200 Bangkok Declaration 200 Belt and Road Initiative (BRI) 90, 94, 96, 99, 234, 252; Green, sustainable connectivity in framework of 179–181 Bensouda, F. 2 Biden, J. 2, 4, 39, 65, 90, 96, 119–120, 170, 228, 255 bird flu 61 Bolton, John R. 72 Borrell, J. 248 BRICS (Brazil, Russia, India, China and South Africa) 22 Broz, J.L. 130 Brundtland, G. H. 60 bullfighting in Spain 24 Bush, George W. 7–8, 38, 197, 229 Campaign Against Arms Trade (CAAT) 77–78 Caporaso, J.A. 4 Central and Eastern Europe (CEE), China-EU relations with 174 Centre of International Financial System 128–129 Chan, M. 61 Chang, P. 49 Chen Zhimin 7

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China: American unilateralism on 252–254; Arms Trade Treaty and 77–79; challenge, response to 46–49; civilisation 23; concept of multilateralism 9–10; Convention on Cluster Munitions and 76–77; culturally relativist discourse, deployment of 48; exchange rate politics 131–133; flagship discourse 42–44; institutions 44–45; intangible cultural heritage and 30; International Labour Standards 163; at International Monetary Fund 133–139; in Iran Nuclear Deal 230–231, 234–235; in Middle East Peace Process 249–252; Middle East policy of 234; multilateralism in law of sea 93–95; in multilateral settings 264–270; norms, international human rights 42–44; North Korea and 214, 217–218; Ottawa Convention and 74–76; political coalitions 40–42; politics 45–46; rise of 9; Rome Statute and 71–74; sanctions policy 217–218; SARS crisis 58–60; solo-sponsored resolutions of 43–44; South China Sea 94–95; South Korea and 214; strategic platform 25; Treaty on the Prohibition of Nuclear Weapons 80; undervalued currency 131–133; UNESCO heritage process and 25, 31–32; unilateralism 93–95; in United Nations Human Rights Council 39–40; United States and 64–66, 171, 181–183, 217; in World Health Organization 57; World Heritage and 27–28; see also energy partnership, European Union-China Churchill, R.R. 98 city-to-city cooperation 174–176 civilisation 21; China 25; cultural 27; European Union and 25–26; mark of 23; standard of 22–24; UNESCO and 24; United States and 26; use of 23; see also cultural heritage climate change multilateralism: coal phaseout process 171; European Union-China cooperation 170–174; transatlantic cooperation bridge 171; transpacific trade wars 171; United States-China cooperation on 181–183 Clinton, Bill 8–9, 229 coal phase-out process 171 Committee of Experts on the Application of Conventions and Recommendations (CEACR) 155, 156, 159, 163

Committee on Freedom of Association (CFA) 155 Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) 157 Comprehensive Test Ban Treaty (CTBT) 211 conditional delegation framework 130, 142–145 confidence-building measures (CBMs) 195, 197–199, 201 Convention for the Safeguarding of the Intangible Cultural Heritage (ICHC) 22, 29–30 Convention on Cluster Munitions (CCM) 76–77 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction see Ottawa Convention coronavirus SARS-CoV-2 53; see also Covid-19 Council for Security Cooperation in the Asia-Pacific (CSCAP) 195 Countering America’s Adversaries Through Sanctions Act (CAATSA) 217 COVAX (vaccine) 65–66 Covid-19 53–54; Donald Trump and 65; international politics 64–66; vaccine against 65–66; World Health Organization and 55, 57, 64–66 crimes against humanity 77; definition of 74; and war crimes 73 cultural heritage 21–22, 25–26; engagement with UNESCO’s domains 26–32; heritage diplomacy and standard of civilisation 22–24; intangible cultural heritage 29–31; inward-facing ways 29–31; multilateralism, promises and perils of and for 26–32; multilateralism and soft power 24–26; as outward-facing component 27–29; World Heritage 27–29 customary international law 82 Davies, S.E. 57, 63 Delpech, Q. 159 Democratic People’s Republic of Korea (DPRK) 210; China and 214; European Union and 214–215; nuclear programme 211–213; sanctions policy 215–219; South Korea and 213; substance of trilateral relations, security matters 219–221; United States and 213–214 denuclearisation process 214, 218

Index dispute settlement system (DSS): in Dispute Settlement Understanding 112; motives behind US decision 113–116; under pressure 111–113; responding to crisis 116–118; sophisticated enforcement system, supported by 112; Trump and American trade policy 109–111; two-tier mechanism 112; World Trade Organization 109–121 divided P5 71–79; Arms Trade Treaty 77–79; Convention on Cluster Munitions 76–77; Ottawa Convention 74–76; Rome Statute of the International Criminal Court 71–74 Dreher, A. 130 East Asia Summit (EAS) 193 Ebola (2014) 62–63 effective multilateralism 230 Elbe, S. 62 energy partnership, European Union-China 167–168; city-to-city cooperation for low-carbon global economy 174–176; climate change cooperation, challenges of 170–172; climate change cooperation and member states 172–174; competition vs cooperation 176–181; solar and wind power sectors 177–179; sustainable connectivity in framework of green BRI 179–181 energy partnership, United States-China 181–183 EU-China Energy Cooperation Platform (ECECP) 170, 173, 178 EU-China Mayors Charter 175 EU-China Summit 173 European Economic Community (EEC) 97 European External Action Service (EEAS) 248 European Green Deal 173–174 European Investment Bank (EIB) 233–234 European Monetary Fund (EMF) 126, 130, 141 European Network of TSOs – Electricity (ENTSO-E) 178 European Network of TSOs for Gas (ENTSOG) 178 European Union (EU): alliance with UNESCO 25–26, 31–32; American unilateralism on 252–254; Association of South-East Asian Nations and 99–100; China and 170–181; during coronavirus pandemic 53–54; critical engagement policy 214; free trade

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agreement 159; intangible cultural heritage and 30; International Labour Standards 163; at International Monetary Fund 139–143; in Iran Nuclear Deal 230–234; Israel and 246–247; maritime security sphere 98–101; in Middle East Peace Process 246–249; multilateralism, concept of 10–12; multilateralism in law of sea 97–101; in multilateral settings 264–270; North Atlantic Treaty Organization and 98–99, 101; North Korea and 214–215, 218–219; political coalitions 40–42; response to China challenge 46–49; sanctions policy 218–219; security and prosperity 101; in South China Sea 94–95; in United Nations Human Rights Council 40; Vietnam cooperation 100–101; in World Health Organization 57; World Heritage and 28–29; see also energy partnership, European Union-China exchange rate policy of China 131–133, 135 female circumcision, cultural heritage and 24 FON operations (FONOP): China 94; United States 96 Fontaine, R. 94 Food and Agriculture Organization (FAO) 98 foreign hostile forces: China and 46; European Union as 49–50; United States as 49–50 France: Arms Trade Treaty and 77–78; Convention on Cluster Munitions and 76; Ottawa Convention and 75; Rome Statute and 71; Treaty on the Prohibition of Nuclear Weapons 71, 79–81 Freedom of Navigation (FON) policy 89; China 94; United States 95–96 free trade agreement (FTA) 155–157, 195 French, Hilary 175 Geng Shuang 78 Germany 229 Gilli, A. 236 Gilli, M. 236 global (public) health security 54; Ebola (2014) and western health security 62– 63; rise of 58–60; SARS (2003) 58–60; state sovereignty and 57–63; swine flu (2009) and vaccine security 60–62 Global Energy Interconnection (GEI) 180

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Global Influenza Surveillance Network (GISN) 61 Global Outbreak Alert Response Network (GOARN) 56, 57 government-organised non-governmental organisations (GONGOs) 45 Gravel, E. 159 great powers, defined 70 Green Belt and Road Initiative 179–181 Grotius, H. 92 H1N1 influenza virus see swine flu (2009) H5N1 influenza see bird flu Hague Law 70 Haley, Nikki 79–80 Hanrieder, T. 56, 62 Hawes, M.B. 130 Hawwash, K. 249 hegemony: decline of US 8; multilateral institutions and 4–6; multilateralism and 4–5 heritage diplomacy 22–24 Hoang, H.H. 157 Hoffmann, M.L. 252 Hong Kong Special Administrative Region (SAR) 59 Hopkins, J. 53 Horton, R. 65 Hoyer, W. 233 Hu Jintao 39 Human Rights Council (HRC) see United Nations Human Rights Council Human Rights with Chinese Characteristics 42–43 Hu Xiaolian 135 Ikenberry, J.G. 6 Independent Evaluation Office (IEO) 135 Indonesia-Malaysia maritime disputes 197 Information Fusion Centre (IFC) 201 INSTEX see Special Purpose Vehicle (SPV) intangible cultural heritage (ICH) 23–24; definition of 24; representative qualification of 30 International Atomic Energy Agency (IAEA) 212, 220, 229, 231 International Climate Initiative (IKI) 176 International Committee of the Red Cross (ICRC) 78 International Court of Justice (ICJ) 197 International Criminal Court (ICC) 2; Rome Statute of 8–9, 71–74

International Health Regulations of 2005 (IHRs) 56–58 international humanitarian law (IHL) 12, 70; international criminal justice in 71; see also permanent members of United Nations Security Council (P5) international human rights: institutions 44–45; norms 42–44; politics 45–46 International Labour Organization (ILO) 12, 152–153; Declaration of Fundamental Principles and Rights at Work 153–155; International Labour Standards 153–155 International Labour Standards (ILSs): consequences of 163; delegation 159– 161; free trade under pressure 155–157; increasing legalisation of 157–163; International Labour Organization and 153–155; obligation 161–162; precision 158–159; in trade agreements 157–163; for trilateral relationship between US, EU and PRC 163 International Maritime Organization (IMO) 98 International Monetary and Financial Committee (IMFC) 129, 132 International Monetary Fund (IMF) 9, 12; China at 131–139; establishment of 128; European Union at 139–143; governance of 129; overseeing exchange rate stability 128–129; surveillance activities 128; United States at 129–131; voting at 129 International Renewable Energy Agency (IRENA) 180 International Trade Union Conference (ITUC) 163 International Urban Cooperation programme (IUC) 175 Iran–Libya Sanctions Act (1996) 229 Iran Non-Proliferation Act 229 Iran Nuclear Deal 12, 13, 227–228; Barack Obama and 8; brief history of 228–229; China 231, 234–235; Donald Trump and 2; European Union 230–234; Security Council, role of 230, 231; transnational corporations, position of 235–238; United States 230; withdrawal of United States from 227–238 Israel, and European Union 246–247 Israeli-Palestinian peace process: China’s role in 249–252; European Union’s role in 246–249; see also Middle East Peace Process (MEPP)

Index Jae-in, Moon 213 Japan EU Free Trade Agreement (JEFTA) 158 Joint Comprehensive Plan of Action (JCPOA) see Iran Nuclear Deal Jong-il, Kim 212 Jong-un, Kim 212–214 Kagan, R. 230 Kahler, M. 7 Kamradt-Scott, A. 57 Kankurang, The 24 Kennedy, D. 156 Keohane, R.O. 3–5, 91 Korea Fair Trade Commission (KFTC) 161 Kreuder-Sonnen, C. 56, 60, 62 Kushner, J. 245 Kyoto Protocol 8–9 Lagarde, C. 144 Lamy, Pascal 109 Langille, B.A. 154 Legarda, H. 251, 252 Lighthizer, R. 116 Like-Minded Group (LMG) 40–41 Li Ruogu 134–135 Lisbon Treaty (2007) 232 Long, C. 62 low-carbon global economy, city-to-city cooperation for 174–176 Lowe, A.V. 98 Macron, E. 233 Madrid Peace Conference (1991) 250 Malaysia-Singapore maritime disputes 197 Mao Zedong 249–250 Mare Clausum (Selden) 92 Mare Liberum (Grotius) 92, 93 maritime security sphere 98–101 Market Power Europe 11 Martin, L.L. 4 McInnes, C. 63 Médecins Sans Frontières (MSF) 62 Michel, C. 232–233 Middle East Peace Process (MEPP) 12, 243–244; China’s role in 249–252; European Union’s role in 246–249; Trump Administration and 244–246 Middle East policy of China 234 Mochochoko, P. 2 Mogherini, F. 215, 232, 247–248, 253 monetary system see multilateral trade and monetary system

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multilateral humanitarian legal regimes see Convention on Cluster Munitions (CCM); Ottawa Convention; Rome Statute multilateral institutions 3–7 multilateralism 89–91, 130; advantages of 6; agenda for research on 3; assertive 230; China and 9–10, 25, 93–95; conceptualising 1–14; cultural heritage and 24–26; defined 3–7; effective 230; European Union and 10–12, 25–26, 97–101; as international mainstream 92–93; at International Monetary Fund 143–145; and multilateral institutions 3–7; multipolar 5, 66–67, 146, 184; “numerical” approach to 169; at peril 143–145, 262–273; pragmatic 231; promises and perils of and for 26–32; questions about 12–13; state of 270–272; unilateralism and 91–93; United States and 26, 95–96; US-China-EU triangle 7–13; US concept of 7–9; see also climate change multilateralism multilateral trade and monetary system 126–127; China at fund 131–139; European Union 139–143; International Monetary Fund 128–129; multilateralism at fund 143–145; multilateralism at peril 143–145; United States 130–131 Multiparty Interim Appeal Arbitration mechanism (MPIA) 117 multipolar multilateralism 5, 66–67, 146, 184 Netanyahu, B. 244, 249, 250 Nollkaemper, A. 91 non-governmental organisations (NGOs) 45 Non-Proliferation Treaty (NPT) see Treaty on the Non-Proliferation of Nuclear Weapons (NPT) Normative Power Europe (NPE) 11, 221 North American Free Trade Agreement (NAFTA) 110, 158, 161 North Atlantic Treaty Organization (NATO) 1, 98–99, 101 North Korea see Democratic People’s Republic of Korea nuclear programme 211–213 nuclear proliferation 211, 220–221 nuclear weapons see Treaty on the Prohibition of Nuclear Weapons (TPNW)

280

Index

Obama, B. 7–9, 38, 78, 229, 246 Office of Foreign Assets Control (OFAC) 216 Office of Trade and Labour Affairs (OTLA) 160 One Belt, One Road (OBOR) initiative see Belt and Road Initiative (BRI) one-size-fits-all model 135, 141 Ottawa Convention 74–76 P5 see permanent members of United Nations Security Council (P5) Palestine Liberation Organization 244, 247 Palestinian-Israeli Peace Symposium 251 Paris Agreement (PA) 12; Barack Obama and 8; Donald Trump and 1; Iran and 229, 231; as multilateral setting 169–170; United States, departure of 167–170 Partnership on Climate Change (2005) 172–173 Partnership on Urbanisation 175 peace process see Middle East Peace Process (MEP) People’s Republic of China (PRC) see China permanent members of United Nations Security Council (P5) 70–71; divided P5 71–79; joint statement of 79–82; united P5 79–82; see also China; France; Russia; United Kingdom (UK); United States (US) pragmatic multilateralism 231 preventive diplomacy 196–199, 201 Public Health Emergency of International Concern (PHEIC) 53; Ebola virus 62; SARS 56–58; swine flu 61 Rapp-Hooper, M. 94 Regional Comprehensive Economic Partnership (RCEP) 157 Regling, K. 141 Rodrik, D. 153, 156 Roemer-Mahler, A. 62 Rome Statute 8–9; China 71–74; France 71; of International Criminal Court 71–74; Russia 71–74; United Kingdom 71; United States 71–73 Rosenau, James 174–175 Ruggie, J.G. 3–6 Russia: Arms Trade Treaty and 77–78; Convention on Cluster Munitions and 76–77; Ottawa Convention and 74–75; Rome Statute and 71–74; Treaty on the Prohibition of Nuclear Weapons 80

sanctions policy: China 217–218; Democratic People’s Republic of Korea 215–219; European Union 218–219; United Nations 216; United States 216–217 SARS (2003) 58–60 Selden, J. 92 Shea, D. 116 Sino-German Urbanisation Partnership 176 Sino-Israel bilateral ties 250 Six-Party-Talks 197, 210, 212–213 social clause 154, 158 social dumping 154 solar power sectors 177–179 solar PV dynamics, analysis of 178 South China Sea (SCS) 89–91; European Union, cooperating in maritime security sphere 98–101; Philippines approach to 197; United States 95–96; US-China tensions 94–95 South Korea 210; China and 25, 214; North Korea and 213; United States and 213 Soylu, U. 130 Spanish flu pandemic 60 Special Procedures, Human Rights Council 38 Special Purpose Vehicle (SPV) 233 St. Petersburg Declaration (1868) 70 Strategic Arms Reduction Treaty (START) 211 sustainable connectivity cooperation, EU-China 179–181 swine flu (2009) 60–62 Tamiflu (vaccine) 61–62 Tentative List 27 Trade Act of 1930 1 Transatlantic Trade and Investment Partnership 110 transcontinental electricity transmission supergrids 181 Trans-European Transport Network (TEN-T) 180 transnational corporations, position of 235–238 Transpacific Partnership Agreement (TPP) 1 Treaty of Amity and Corporation 200 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) 80, 81, 211 Treaty on the Prohibition of Nuclear Weapons (TPNW) 79–81, 211 Trump, D.J. 1–2, 7–8, 12, 65, 78, 227, 229; American trade policy 109–111; climate partnership with China 181–183; deal

Index of the century 245; Democratic People’s Republic of Korea and 213–215; Human Rights Council 38–39, 41; Middle East Peace Process and 244–246; Paris Agreement, departure from 167–170; unilateral policies 247–248; World Trade Organization dispute settlement system under pressure 111–113 Trump-Kim summit 216 undervalued currency of China 131–133 unilateralism: China 93–95; coexisting 93; International Monetary Fund and 131; multilateralism and 91–92; United States 95–96; see also American unilateralism United Kingdom (UK): Arms Trade Treaty and 77–78; Convention on Cluster Munitions and 76; Ottawa Convention and 75; Rome Statute and 71; Treaty on the Prohibition of Nuclear Weapons 79 United Nations Convention on the Law of the Sea (UNLOSC) 12, 89, 197; China and 93–95; European Union and 97– 101; Food and Agriculture Organization in 98; International Maritime Organization in 98; multilateralism and unilateralism and 91–92; multilateralism as international mainstream 92–93; multilateral rules-based international order within 91–93; unilateralism coexisting 93; United States 95–96 United Nations Educational, Scientific and Cultural Organization (UNESCO) 1, 8, 12, 21; acceptance of Palestine 26; China and 25, 31–32; civilisation, standard of 22–24; European Union and 25–26, 31–32; heritage diplomacy 22–24; involvement in culture 24; United States and 26, 31–32 United Nations Human Rights Council 12, 36–38; agendas of 36; establishment of 36, 37; European Union and 40; important mandates of 37–38; member states of 37; normative thrust in 43; People’s Republic of China 39–40; political coalitions, trilateral dynamics in 40–42; trilateral dynamics in 38–42; United States 38–39, 41–42 United Nations International Law Commission 82 United Nations Mission for Emergency Ebola Relief (UNMEER) 62 United Nations Relief and Works Agency (UNRWA) 248

281

United Nations Security Council Resolution (UNSCR) 212 United Nations World Summit for Social Development (1995) 153 United States (US): Arms Trade Treaty and 77–79; China and 64–66, 171, 181–183, 217; Convention on Cluster Munitions and 76; during coronavirus pandemic 53; Democratic People’s Republic of Korea and 213–214, 216– 217; engagement with UNESCO 26, 31–32; intangible cultural heritage and 30; International Labour Standards 163; at International Monetary Fund 129–131; in Middle East Peace Process 244–246; multilateralism, concept of 7–9; multilateralism in law of sea 95–96; in multilateral settings 264–270; Ottawa Convention and 74–75; Paris Agreement, departure from 167–170; political coalitions 40–42; rejection of soft diplomacy 26; response to China challenge 46–49; Rome Statute and 71–73; sanctions policy 216–217; in South China Sea 94–95; South Korea and 213; substantive changes in Fund policies 131; swine flu in 60–62; Treaty on the Prohibition of Nuclear Weapons 79–80; unilateralism 95–96; in United Nations Human Rights Council 38–39; withdrawal from Human Rights Council 41–42; withdrawal from Iran Nuclear Deal 227–238; in World Health Organization 57; World Heritage and 29; see also climate change multilateralism; dispute settlement system (DSS) United States Centers for Disease Control and Prevention (CDC) 62 United States-Korea Free Trade Agreement (KORUS) 110 United States–Mexico–Canada Agreement (USMCA) 110, 158–159, 161 United States Trade Representative (USTR) 161 Universal Periodic Review (UPR) 38; China 39, 41, 45 vaccine security 60–62 Vaubel, R. 130 Venice Declaration 246–247 Vermont Climate Pledge Coalition 182 von der Leyen, Ursula 11, 65, 160

282

Index

Wang Yi 78 war crimes 77; definition of 74; international criminal responsibility for 71; US Army in Afghanistan 72–73 warfare, means and methods of 70 Wen Jiabao 39 western health security 62–63 wind power sectors 177–179 Winter, T. 21 World Food Programme (WPF) 215 World Health Assembly (WHA) 55 World Health Organization (WHO) 12; China and 57–60; Ebola and 62–63; European Union in 57; naming of Covid-19 53; as proxy battlefield of US-China rivalry 64–66; SARS and 58–60; shifting authority 54–57; swine flu and 60–62; United States in 57 World Heritage 23; China’s engagement with 27–28; European Union’s

engagement with 28–29; outstanding universal value 23, 27, 30; US approach to 29 World Heritage Convention (WHC) 26–29 World Trade Organization (WTO) 12, 109, 152, 229; China and 60, 110, 134; Dispute Settlement Body 1; see also dispute settlement system (DSS) Xi Jinping 10, 11, 39, 250–252 Yan, H. 28 Yi Gang 136 “zero-emissions” advanced coal technology 171 “zero enrichment” policy 230 zero-tolerance policy 160 Zhenya, L. 180 Zhou Xiaochuan 134, 136