The Psychological, Economic, and Social Impact of Amnesty on Migrants and Society

Yu Furukawa | News contributor

Introduction 

In the presence of a massive influx of undocumented migrants, countries sometimes implement an amnesty, granting legal immigration status to these migrants. This blog examines the potential advantages and disadvantages of such amnesty programs and discusses how they can be addressed.

This blog suggests that

1. Implementing an individual-based application can help prevent informal employment and exploitation by employers.

2. A temporary amnesty that only offers short-term legal status for staying and working will just lead migrants to revert to an undocumented status. Providing a pathway to permanent residence after amnesty can prevent them from ending up in that situation.

3. Combining amnesty with other policies is necessary to address other factors of undocumented migration.

4. Minimizing the welfare state burden caused by amnesty can be achieved through vocational training.

5. Requirements need to be designed in a way that controls the number of applications.

6. It is important to be mindful and proactive about the administrative capacity needed to process amnesty applications. 

Amnesty is not a monolithic concept and can be classified into various types. 

de-facto vs one-shot : Amnesty can be defined as part of regularization or legalization, which can be classified mainly into two categories. One is de-facto regularization, which refers to the automatic provision of permanent residency to immigrants after they have lived in a country for a certain duration of years (Levinson, 2005a). The other is known as “one-shot” or ”one-off”, which targets a limited number of immigrants. It often targets particular categories of people by establishing specific residence and work requirements (Levinson, 2005a). It also often establishes a precise timeline with application deadlines. This blog will mainly focus on the latter, the “one-shot” amnesty.

Types of permits : Some amnesty yields permanent residence, while others provide temporary residence with a limited duration (Levinson, 2005a). Some amnesty programs also issue temporary work permits.

Beneficiaries : Who counts as “irregular migrants”?  They can be classified based on the intersection of entry, stay, and work status. The most common types include “Persons who never had a regular status because they entered illegally and could not find a way of regularizing their status”, “Persons who entered on a tourist visa and working irregularly”, and “Persons who lose their residence status because they no longer satisfy the conditions that initially granted the permit” (Spencer and Triandafyllidou, 2022). While there are various other types of 'irregular migrants,' such as children whose parents also lack legal status, this blog will focus on the three mentioned above, as they are the primary targets of amnesty worldwide, with some exceptions.

The following section examines the advantages and disadvantages of amnesty , as well as the questions that governments need to address before implementing amnesty. 

Advantages and Disadvantages 

Well-being and Psychological Effects on regularized migrants 

Amnesty can have a positive impact on the mental health of regularized migrants. Undocumented  migrants often experience mental health challenges because of the harsh working conditions in the informal sector, restricted access to housing and healthcare, and fear of policing, detention and deportation (Benach et al., 2011; Qureshi, Morris, and Mort, 2020). However, obtaining legal immigration status can alleviate some of these psychological burdens to some extent, as showcased by some empirical studies (Patler and Laster Pirtle, 2018; Refle et al., 2023).

Impacts on Migrants’ Economic Integration 

Another advantage of amnesty for its beneficiaries is its potential to facilitate economic integration into the host society. Deiana, Giua, and Nisticò (2022) showed that migrants regularized by the amnesty are more likely to secure formal sector employment a decade later, as compared to those who were ineligible for amnesty.

However, poorly designed amnesty may fail to reduce informal employment and even generate further informal employment among undocumented migrants. This is because (i) employers are unwilling to pay higher wages to legalized workers and demand more undocumented migrants or want legalized migrants to still work informally (Levinson, 2005b); (ii) migrant or familial networks enable migrants to obtain informal jobs more easily; (iii) working in the formal economy is not always viable for migrants because of a mismatch between their skills and the skills required for available jobs, as well as limited job opportunities and stagnant economic conditions, even after they are technically allowed to work formally. Thus, unless amnesty is well-designed, it is probable that regularized migrants will continue or choose to work in the informal sector.

To make regularization appealing and beneficial to undocumented migrants, governments can consider implementing several policy tools. Firstly, it is important not to limit the range of jobs available to them. It is further advisable for governments to provide job seeking assistance and vocational training to enhance their job opportunities. Furthermore, governments should carefully consider the timing of the program in order to avoid a time when the economy is stagnant and the high unemployment rate is high.

When an amnesty application is tied with employer’s assistance or sponsorship, amnesty might look unattractive and daunting for employers as well. This is because keeping migrants undocumented allows employers to pay lower wages than the minimum wage and avoid paying social contributions typically required for legal employees, in addition to the costs associated with the application. As a result, some undocumented migrants may struggle to find a sponsor.  Even worse, employers might exploit undocumented migrants. They might make migrants pay an application fee that is supposed to be paid by employers, sell labor contracts in exchange for application assistance (Platform for International Cooperation on Undocumented Migrants, 2022). Thus, involving employers in the application process can result in adverse outcomes for migrants. Therefore, governments should consider implementing a migrant-independent application process rather than an employer-tied one. For example, the amnesty program called “Operation Papyrus”, Geneva in Switzerland, allowed undocumented migrants to apply for residence permits without the support of their employer, only requiring  them to ‘self-declare’ their current working relationship with employers (Bouvier, 2020). In doing so, governments opened up the amnesty opportunities for migrants who are in exploitative relationships and cannot seek application support from employers.

Impact on “Irregular” Migration Deterrence : Further “Irregular” Migration? 

It is also important to consider how amnesty impacts the undocumented migration landscape. One of the primary arguments against amnesty is that it can serve as a pull factor for further undocumented migration. However, many of these arguments lack counterfactual analysis (Walsh and Sumption, 2023), leaving out other factors influencing undocumented migration. It is possible that undocumented migration would have increased even without an amnesty program. The reality is more complex in the sense that there might be other factors. For example, Orrenius and Zavodny (2003) found that the 1986 Immigration Reform and Control Act, which granted amnesty to nearly 2.7 million undocumented migrants in the United States (Levinson, 2005b; Walsh, 2020), did not alter long-term patterns of undocumented migration from Mexico. This suggests that other factors, such as lowered wages in Mexico and the depreciation of the US dollar, are driving undocumented migration.

However, there are two things to bear in mind about the impact of amnesty in relation to undocumented migration. Firstly, amnesty which grants only temporary permits may lead to an

increase in the number of undocumented migrants because migrants may choose to remain even after the permits expire, anticipating future amnesty (Reyneri, 2004; Levinson, 2005b). If an amnesty program only provides temporary legal status, regularized migrants are likely to return to undocumented status again. When their permit expires, they tend to choose to remain without legal status and wait for the next amnesty rather than return voluntarily to their countries (Levinson, 2005a). As a result, they may repeatedly experience psychological stress and a lack of well-being due to their (re)undocumented status, as discussed in section 3-1.

Conversely, immediately granting permanent residence can lead to a high volume of applications and draw public criticism. Therefore, it is necessary for governments to carefully decide the types of status and pathway that should be given. One compromise is to establish a pathway to permanent residence based on criteria such as the duration of work or residence after the amnesty, language skills, and the degree of social and economic integration (Levinson, 2005b; Desmond, 2021). 

Secondly, amnesty is just a makeshift policy that temporarily reduces the current number of undocumented migrants in the country without addressing other variables of future undocumented migration. It does not deal with the structural factors driving undocumented migration into countries, so it is questionable whether amnesty has a positive impact on curbing the number of undocumented migrants in the future (G. Papademetriou, 2005). Therefore, if governments seek to reduce the number of undocumented migrants, what is necessary is to explore complementary policies addressing structural factors driving contemporary and future undocumented migration. Examples include establishing and expanding legal migration channels and fostering cooperation with origin and transit countries (G. Papademetriou, 2005). 

Impact on Economy

Amnesty may cause competition between native workers and newly regularized migrants. The aim of amnesty is to reduce the size of informal employment and generate a massive workforce in the formal sector, which could potentially compete with native workers. In reality, however, amnesty programs do not necessarily negatively impact native workers in the formal sector, as they often fail to send migrants into formal employment (Bahar, Ibáñez, and Rozo, 2021). Regularized migrants may find it unattractive to get a formal job if there is an additional cost or if it is unclear if they can get a formal job, even if they are permitted to work in the formal sector.

Another economic concern about amnesty is its financial burden on native taxpayers. Some argue that regularized migrants may obtain access to the welfare state, including education, health, housing, and welfare benefits, which can be a burden on native tax papers (Migration Watch UK, 2019).  While migrants’ net fiscal contributions through taxes may somehow offset these costs, it is reasonable to assume that they are less likely than other migrants to make significant fiscal contributions since regularized migrants are more likely to face long-term unemployment, as Gordon, Scanlon, Travers, and Whitehead (2009) showed. As a result, they tend to be more dependent non welfare benefits (Casarico, Facchini and Frattini, 2016). 

Therefore, it is necessary to consider to what extent this burden can be mitigated by their economic contribution. One possible way to alleviate the burden is by partially restricting the welfare benefits to them. For example, governments can provide fewer housing benefits to regularized migrants compared to the native population. However, these restrictions are often criticized by humanitarian organizations because these benefits play a pivotal role in migrants’ integration. .Therefore, the extent to which it has to cut the benefit should be carefully calculated based on the revenue migrants can generate, such as tax revenue or health insurance.

Another strategy is to directly enhance migrants' economic contribution. This includes implementing vocational and language training for them. It is the less competent skill sets of regularized migrants that make them more reliant on welfare benefits. By directly improving their skills and language ability, the government can enhance their probability of employment in well-paid and highly skilled jobs. 

Taken together, to evaluate the overall economic impact of amnesty, it is necessary to consider how many regularized migrants will end up working in the formal sector and how much fiscal contribution they will make.

Administrative Burden

Another disadvantage is that amnesty can cause administrative chaos. A lack of preparation, such as staff shortages, can lead to backlogs, slow processing, and even a downward revision of the final number of migrants actually regularized, as exemplified by Portugal’s 1992 regularization program, which only regularized 38,000 migrants out of 80,000 applicants (Levinson, 2005b).

To effectively implement amnesty and handle the expected number of applicants, it is necessary to ensure that governments have a sufficient capacity to handle amnesty-related administrative tasks. This involves mobilizing and training enough staff (Platform for International Cooperation on Undocumented Migrants, 2022; Baldwin-Edwards and Kraler, 2009). It is also desirable to collaborate with NGOs and immigrant communities who are familiar with the size of migrants residing in local communities. Moreover, while many amnesty programs have technical requirements, such as proof of residence and duration of stay, not all criteria follow this pattern, and the judgment of officials is necessary. However, administrative discretion can lead to heightened bureaucratic costs.

The administrative burden can be also affected by how strict the requirements for amnesty are. Although setting excessively stringent criteria can lead to the unwanted exclusion of undocumented migrants, setting requirements can help control the number of applications within administrative capacity. Here are two requirements to consider in particular: 

Employment-related requirements : employment-related requirements have an impact on the number of applications. Stricter requirements may present obstacles for migrants who are considering applying. Whether it is formal or informal employment, proof of employment can be one of the requirements. While proof of sponsorship by employers could also be a potential requirement, involving employers in the application system may lead to further exploitation of undocumented migrants, as mentioned earlier. 

Duration Requirements: Establishing a requirement for applicants to have resided in the country for a certain period of time can help governments to control the number of regularization to some extent.  If the amnesty occurs shortly after a massive influx of undocumented migrants and they are the target for the program, a substantial number of applications will be expected. Conversely, setting the relatively lengthy residence requirement can reduce the number of applications. The restrictiveness of residence requirements should be determined based on the anticipated number of applications. Many amnesty programs have historically used a specific date as a reference point (Levinson, 2005b). If migrants entered the countries after this date, they would not be eligible for the amnesty program. There is no ideal minimum duration requirement because immigration situations vary between counties. However, a method used by JCWI (2021) could potentially be useful to determine an appropriate duration. They conducted sampling and surveys of undocumented migrants. While it is difficult to capture all undocumented migrants, sampling is possible. This approach can provide data on the percentages of undocumented migrants residing in the country for various durations. This allows to estimate the threshold duration needed to regularize different percentages of undocumented migrants. 

Conclusion

Amnesty can have a positive impact on migrants' mental health and economic integration as well as temporary reduction of undocumented  migrants. However, poorly designed amnesty programs can result in regularized migrants remaining in informal employment, perpetuating or even increasing the number of undocumented migrants, and creating welfare state burden. 

To maximize the advantages and minimize its disadvantages, governments should consider the following aspects. Firstly, to prevent a return to undocumented status or informal employment and to protect migrants from exploitation by employers, it is necessary to conduct vocational training for migrants and adopt an migrant-independent application system. Secondly, to reduce the number of undocumented migrants in the long run, it is important to establish a pathway to permanent residence and combine amnesty with other policy options . Thirdly, in order to minimize the burden on the welfare state, it is important to maximize the economic contribution of regularized migrants through vocational training and language training . Fourthly, to process applications smoothly, it is crucial for governments to control the number of applications by setting appropriate requirements and being aware of administrative capacity. 

References

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Bouvier, C. (2020). Geneva: Operation Papyrus regularised thousands of undocumented workers. [online] PICUM. Available at: https://picum.org/blog/geneva-operation-papyrus-regularised-thousands-of-undocumented-workers/ [Accessed 9 Apr. 2024].

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The threat of on-chip AI hardware controls

Jai Vipra | CyberBRICS Fellow, Center for Technology and Society, FGV Direito Rio

Introduction

Computational infrastructure is one of the most important constraints on AI development. Chips used to train and run AI models are expensive to produce and supplied by an extraordinarily concentrated market via a complex international supply chain. 

Recently, governments have become concerned about the strategic value of AI. This strategic value has two dimensions: one, that AI can potentially function as a lever of innovation and economic development, creating an advantage for any country that controls it [1]. Two, that AI can provide direct defence or military advantage through its use in surveillance and weapons systems [2]. Separately, potential security risks can arise from the malfunctioning, misuse, or malicious use of AI. These considerations have led to the United States’ restrictions on the export of the most advanced AI chips to China [3].

Against this backdrop, some analysts have recommended a policy of intervening at the design and manufacturing stages of AI chips to include hardware modifications to achieve policy goals [4]. This policy – hereafter “hardware controls” – is specifically recommended as a way for the United States to maintain its advantage in advanced chip design technology in relation to China and the rest of the world. It is also discussed to ensure that the ultimate control over AI development remains with a government (de facto the US government) [5]. 

The fact that all the most advanced AI chips today use American technology at some point in their value chain would allow the US government to unilaterally impose hardware controls by making them a condition of export. Existing export controls on semiconductor technology follow this route as well, invoking the foreign direct product rule (a regulation under the US Department of Commerce) and using it to disallow any semiconductor manufacturing company anywhere in the world from serving any Chinese design company to make AI chips [6]. China has already initiated a dispute at the WTO against these export controls, accusing the United States of using export controls meant for global security and non-proliferation, in the service of commercial technological leadership [7].

Hardware controls are conceived as an extension of these export controls that would include the ability to monitor and modify the use to which AI chips are put. They can allow a third party to monitor the kind and level of usage for a given chip or a cluster of chips; they can also allow them to remotely shut down the functioning of chips and therefore of an AI system [8]. In a sense, hardware controls are a kind of technological protection measure (TPM) [9], but unlike well-known applications of TPMs like paywalls, read-only controls, and watermarks, they are not being proposed (at least overtly) primarily for the protection of commercial interests through intellectual property. As we shall see, they might end up primarily protecting intellectual property for commercial reasons anyway.

The primary justifications provided for hardware controls include making chips “secure” and “governable” [10]. Sastry et al. (2024) mention some risks related to hardware controls, in particular the risks of security, privacy, and abuse of power [11]. They also contend that some risks, especially those affecting national security, might be so large as to call for ex-ante measures like hardware controls. This article challenges this primacy of national security and provides an analysis of the problems presented by hardware controls, even if they were to be safeguarded from data security and privacy harm. 

Problems posed by hardware controls

Undue surveillance and government control

It is well-known that government control over certain aspects of technology can lead to a function creep – the extension of a law, rule, or technology beyond its intended purpose [12]. For instance, facial recognition technology can be introduced to police departments as a tool to find missing children, but soon ends up being used for mass surveillance [13]. Effective hardware controls would make it possible and perhaps even easy for governments to monitor and shut down any computing activity that is considered inconvenient or dangerous. This can include even normal commercial activity under a state that favours certain corporations over others. 

Commercial control

The latter concern above is one of the over-regulations of commercial computing activity. A certain degree of openness in both software and hardware has been, and continues to be, crucial to computational progress. Bob Young, then CEO of open-source software provider Red Hat, noted in the introduction to ardent open-source advocate Eric Raymond’s influential 1991 book The Cathedral and the Bazaar that the computer hardware industry innovated much faster than the computer software industry because hardware was freer [14]. In contrast, software controls like digital rights management (DRM) have created locked consumers in to certain providers by making moving to another provider onerous, concentrated various markets (especially in entertainment), and led to obsolescence and the impossibility of preserving “protected” intellectual material [15]. 

Regulation is not well-suited to determine where exactly in the supply chain open source might add most value. The concepts of hardware freedom and free and open source hardware (FOSH) have served as a rallying call around the concerns of government overreach and inappropriate propertization of hardware technology [16]. Some developers have even coalesced around somewhat similar ideas in the realm of chips, under the Free and Open Source Silicon Foundation [17]. The “right to repair” movement also responds to the closedness of devices and the loss of consumer control over the use of devices [18].

This is not to say that the opposite of hardware controls is open hardware; however, central to the vision of proponents of hardware controls is a system of temporary licences that allow the hardware provider, or a third party, to determine the purpose and manner of hardware use.  

Efforts to limit the use of products once they are sold have been controversial. In The End of Ownership (2016), law professors Aaron Perzanowski and Jason Schultz describe the erosion of personal property in the digital age, with providers of goods and services arguing that licensing allows them to arbitrarily delete or control the goods and services provided [19]. Instituting hardware controls means that chip designers, fabricators, and/or the US government will be able to determine the purposes and manner in which advanced AI chips are used. This creates entirely arbitrary restrictions on the ability of commercial or even academic entities to train AI models in the direction they seek. In the context of a very concentrated AI market, such controls do not bode well for new competitors and consequently for innovation.

Distrust in international relations

Importantly, some researchers consider the concentration in hardware markets desirable because it makes these markets easier to regulate, prevents a reckless race in hardware development, and preserves US hegemony over advanced computation. Certainly not everyone shares this desire for US hegemony, and the implications of one government determining what the entire world can do in terms of advanced AI training are not discussed, but these implications are wide-ranging [20]. For this reason alone it is important to counter these efforts. However, the same researchers also claim that hardware controls can “widen the space of possible [international] agreements and policies by providing a trustworthy verification platform” [21]. “Trustworthy” here is used in a technical sense: countries could potentially mutually monitor AI training activity in one another’s territory and use hardware controls to “trust” their own monitoring. 

The larger question of trust is ignored in this hypothetical. If the United States can unilaterally impose hardware controls on advanced chips, there is no manner of verifying that it also does not manufacture (or allow to be manufactured) chips that cannot be monitored, or that it does not create backdoors to monitoring known only to itself. There is an even larger question of trust in international relations: in an environment of intense rivalry between the US and China, and plummeting faith in the rules-based international order in the Global South, unilateral actions aimed at depriving other countries of advanced general technology can hardly be expected to increase trust. International relations scholars have shown that trust is a precondition for international agreements rather than a result of them [22]. A cycle of misperceptions about the motives and actions of rivals in AI governance is already underway, threatening strategic stability [23]. Trust-building measures, in both the rationally calculated and emotive senses [24], must occur before an international agreement on AI governance is arrived at. 

Industrial policy is a legitimate goal, but US export controls on AI chips, as well as proposed hardware controls, conflate national security goals with industrial policy goals. This is a general characteristic of The US AI policy so far, which has not followed the US government’s general approach of distancing industrial policy from national champions [25].

The promotion of delinking

One consequence of growing mistrust in international relations is the delinking of technological systems. Biden’s February 2024 Executive Order to “protect Americans’ sensitive personal data” explicitly targets China’s AI development [26]. Russia and China already have independent digital markets and infrastructure, and all three countries have banned the use of some types of foreign technology in government work. After the US implemented export controls on advanced chips, China accused it of “unilateral bullying” [27]. While US Secretary of State Antony Blinken later stated that the export control measures were not meant to impede China’s progress, China has understood these measures as an imprimatur to develop its own advanced chip technology. It has since taken several steps to develop domestic capability for chip design and production, and has succeeded in important respects [28]. This success has come in spite of expert predictions that it would be nearly impossible with escalating export controls [29]. 

In the US, China’s successes in overcoming some aspects of export controls are used by many commentators to argue for further export controls, and indeed the call for hardware controls is an example of such a push. Here, we ought to examine an assumption that drives these calls – AI is economically and strategically useful, and so the US must limit China’s chip development. However, if AI is quite that economically and strategically useful, China will have extremely high incentives to dramatically increase investments in chip development if the US tries to restrict chip technology exports to China from all countries. In trying to restrict China’s access to advanced chips, the US might be spurring on China’s own delinked chip industry.

In addition, other countries are learning from this example and investing in their own semiconductor industries and in international projects to stave off geopolitical risk at least partially. Various countries including the US have been active in developing RISC-V, an open-source project for an instruction set architecture (ISA) - an interface between hardware and software used by chip designers. Using an open-source ISA reduces dependence on licensed ISA providers like Arm and Intel, and therefore India, China and the EU have been trying to advance its development [30]. All these actors consider such open-source projects as important for digital sovereignty.  

Delinking is not objectively undesirable. Paris Marx (2024) envisions a collective splinternet, without massive global platforms and with interoperability and open protocols [31]. Such a system would make regulation more striaghtforward because it does not pit single nation-states against global platforms. Parallel AI development in various parts of the world might prevent the rise and entrenchment of global corporate AI giants, make regulation easier for governments, and provide choices for consumers. Hardware controls intend to preclude such possibilities entirely, trying to leave the world with only US AI giants being able to develop advanced AI.

In any case, as argued earlier, hardware controls might render themselves ineffective by increasing incentives for delinking and growth in the semiconductor industries of target countries. While their primary purpose may be unfulfilled, their function creep will remain – the increased ability of governments to surveil individuals and corporations, and the increased ability of corporations to control hardware. 

Resisting hardware controls 

We have seen that there are compelling reasons to resist hardware controls. Unlike open-source projects of the past, in this case it is quite difficult for such resistance to arise from a dissident group of programmers. The semiconductor industry is highly concentrated, has heavily guarded intellectual property, and chip production requires enormous amounts of money [32]. Even the most successful open-source projects of the past have faced challenges due to illegality [33]. It is therefore incumbent upon policymakers and civil society to resist the implementation of these hardware controls in the first place. 

Once implemented, hardware controls will likely fail to reach their original objectives (some of which are not necessarily desirable), and can entrench government and corporate control over hardware. AI research is already concentrated in industry rather than academia, and government interests in AI are not always aligned with public interests in AI. Policymakers must look beyond short-term and vague fears over national security and consider the broader implications of hardware controls.

Endnotes

1. Amba Kak and Sarah Myers West, ‘A Modern Industrial Strategy for AI?: Interrogating the US Approach’, AI Nationalism(s) (AI Now Institute, 12 March 2024), https://ainowinstitute.org/publication/a-modern-industrial-strategy-for-aiinterrogating-the-us-approach.

2. Vincent Boulanin et al., ‘Artificial Intelligence, Strategic Stability and Nuclear Risk’ (SIPRI, June 2020), https://www.sipri.org/publications/2020/policy-reports/artificial-intelligence-strategic-stability-and-nuclear-risk.; AI Now Institute, ‘US-China AI Race: AI Policy as Industrial Policy’, 11 April 2023, https://ainowinstitute.org/publication/us-china-ai-race.

3. Gregory C. Allen, ‘Choking off China’s Access to the Future of AI’ (Center for Strategic and International Studies, 10 November 2022), https://www.csis.org/analysis/choking-chinas-access-future-ai.

4. Onni Arne, Tim Fist, and Caleb Withers, ‘Secure, Governable Chips’ (Center for a New American Security, 8 January 2024), https://www.cnas.org/publications/reports/secure-governable-chips; Luke Muehlhauser, ‘12 Tentative Ideas for US AI Policy | Open Philanthropy’, Open Philanthropy (blog), 17 April 2023, https://www.openphilanthropy.org/research/12-tentative-ideas-for-us-ai-policy/.; Gabriel Kulp et al., ‘Hardware-Enabled Governance Mechanisms: Developing Technical Solutions to Exempt Items Otherwise Classified Under Export Control Classification Numbers 3A090 and 4A090’ (RAND Corporation, 18 January 2024), https://www.rand.org/pubs/working_papers/WRA3056-1.html.

5. Ibid.

6. Gregory C. Allen.

7. World Trade Organization, ‘China Initiates WTO Dispute Complaint Targeting US Semiconductor Chip Measures’, 15 December 2022, https://www.wto.org/english/news_e/news22_e/ds615rfc_15dec22_e.htm.

8. Onni Aarne et al. 

9. A TPM is a technical tool that allows a provider or third party to restrict the kinds and levels of use of digital materials. Access-control TPMs include time limits like for digital movie rentals among other measures, and copy-control TPMs include, for instance, blocking downloads of streaming content. See for more: ‘Technological Protection Measures (TPM) - Fact Sheet | SFU Library’, Simon Fraser University, 2023, https://www.lib.sfu.ca/help/academic-integrity/copyright/technological-protection-measures. 

10. Onni Aarne et al.

11. Girish Sastry et al., ‘Computing Power and the Governance of Artificial Intelligence’ (arXiv, 13 February 2024), https://doi.org/10.48550/arXiv.2402.08797.

12. Bert-Jaap Koops, ‘The Concept of Function Creep’, Law, Innovation and Technology 13, no. 1 (2 January 2021): 29–56, https://doi.org/10.1080/17579961.2021.1898299.

13. Jai Vipra, ‘The Use of Facial Recognition Technology for Policing in Delhi’ (New Delhi: Vidhi Centre for Legal Policy, 16 August 2021), https://vidhilegalpolicy.in/research/the-use-of-facial-recognition-technology-for-policing-in-delhi/. 

14. Bob Young, ‘Introduction’, in The Cathedral and the Bazaar: Musings on Linux and Open Source by an Accidental Revolutionary, by Eric S. Raymond, revised edition (O’Reilly, 2001).

15. ‘DRM and the Secret War inside Your Devices’, in The End of Ownership: Personal Property in the Digital Economy, by Aaron Perzanowski and Jason Schultz (The MIT Press, 2018), https://doi.org/10.7551/mitpress/10524.001.0001.

16. See for instance: ‘Our Mission | FreeIO’, accessed 4 May 2024, http://freeio.org/about-freeio/our-mission/.

17. See: ‘FOSSi Foundation: The International Not for Profit Organisation Which Promotes and Protects the Open Source Silicon Chip Movement’, accessed 4 May 2024, https://fossi-foundation.org/.

18. See: ‘Learn About the Right to Repair’, The Repair Association, accessed 2 May 2024, https://www.repair.org/stand-up.

19. Aaron Perzanowski and Jason Schultz, The End of Ownership: Personal Property in the Digital Economy (The MIT Press, 2018), https://doi.org/10.7551/mitpress/10524.001.0001.

20. Meredith Whittaker, ‘Social Media, Authoritarianism, and the World As It Is’, LPE Project (blog), 28 March 2024, https://lpeproject.org/blog/social-media-authoritarianism-and-the-world-as-it-is/.

21. Onni Aarne et al.

22. Brian C. Rathbun, Trust in International Cooperation: International Security Institutions, Domestic Politics, and American Multilateralism, Cambridge Studies in International Relations 121 (Cambridge, UK ; New York: Cambridge University Press, 2012). 

23. Anna Nadibaidze and Nicolò Miotto, ‘The Impact of AI on Strategic Stability Is What States Make of It: Comparing US and Russian Discourses’, Journal for Peace and Nuclear Disarmament 6, no. 1 (2 January 2023): 47–67, https://doi.org/10.1080/25751654.2023.2205552.

24. Torsten Michel, ‘Time to Get Emotional: Phronetic Reflections on the Concept of Trust in International Relations’, European Journal of International Relations 19, no. 4 (December 2013): 869–90, https://doi.org/10.1177/1354066111428972. 

25. Amba Kak and Sarah Myers West.

26. Griffin, Riley, and Jennifer Jacobs. ‘Biden Poised to Limit American Personal Data Going to China’. Bloomberg.Com, 7 February 2024. https://www.bloomberg.com/news/articles/2024-02-07/biden-poised-to-restrict-americans-personal-data-going-to-china.

27. Swanson, Ana. ‘U.S. Tightens China’s Access to Advanced Chips for Artificial Intelligence’. The New York Times, 17 October 2023, sec. Business. https://www.nytimes.com/2023/10/17/business/economy/ai-chips-china-restrictions.html.

28. Patel, Dylan, Afzal Ahmad, and Myron Xie. ‘China AI & Semiconductors Rise: US Sanctions Have Failed’. SemiAnalysis (blog), 12 September 2023. https://www.semianalysis.com/p/china-ai-and-semiconductors-rise.

29. Gregory Allen.

30. Working group on open source hardware and software, ‘Recommendations and Roadmap for European Sovereignty on Open Source Hardware, Software and RISC-V Technologies | Shaping Europe’s Digital Future’, 8 September 2022, https://digital-strategy.ec.europa.eu/en/library/recommendations-and-roadmap-european-sovereignty-open-source-hardware-software-and-risc-v.; Press Information Bureau of India, ‘India Launches Digital India RISC-V (DIR-V) Program for next Generation Microprocessors to Achieve Commercial Silicon & Design Wins by December’2023’, 27 April 2022, https://pib.gov.in/pib.gov.in/Pressreleaseshare.aspx?PRID=1820621.; Stephen Nellis and Max A. Cherney, ‘RISC-V Technology Emerges as Battleground in US-China Tech War’, Reuters, 7 October 2023, https://www.reuters.com/technology/us-china-tech-war-risc-v-chip-technology-emerges-new-battleground-2023-10-06/. 

31. Paris Marx, ‘Embrace the Splinternet’, Disconnect (blog), 2 May 2024, https://disconnect.blog/embrace-the-splinternet/. 

32. Jai Vipra and Sarah Myers West, ‘Computational Power and AI’ (AI Now Institute, 27 September 2023), https://ainowinstitute.org/publication/policy/compute-and-ai. 

33. Christopher Tozzi, For Fun and Profit: A History of the Free and Open Source Software Revolution (The MIT Press, 2017), https://doi.org/10.7551/mitpress/10803.001.0001.

Impacts of the Ban on Asylum Seekers' Employment

Yu Furukawa

Many countries with asylum processes have adopted policies which restrict the access of asylum seekers to the labour market. For example, in the UK, asylum seekers are largely prohibited from working, although they can apply for a permit to work if they have been awaiting a decision for 12 months and are not considered responsible for the delay [1]. Granting asylum seekers, a work permit means allowing them to engage in paid and formal employment either at the time of application or after a certain period has elapsed. The granting of work permits to asylum seekers takes various forms, primarily distinguished by:

1. The duration asylum seekers must wait for the work permit to be approved.

2. The presence of a list of job restrictions that asylum seekers are allowed to engage in.

I evaluate the validity of the argument that supporting the employment of asylum seekers working would act as a ‘pull factor,’ for migrants, and also assess the impacts to the economies of host societies, as well as the well-being and integration of those with asylum.

Debunking the 'Pull Factor' Assumption for Asylum Seeker Migration

The common argument against allowing asylum seekers to work is that it might serve as a 'pull factor' for undocumented migration and asylum applications. However, the validity of this argument is questionable because it lacks counterfactual analysis [2], thereby failing to account for the various other factors influencing undocumented migration and asylum applications. It could be argued that irregular migration and asylum applications would have increased even without the ban on asylum seekers working.

This argument is further challenged by the fact that some asylum applicants are unaware of the challenges they will face in the labour market prior to migration or asylum application. One study [3] showed that, out of 246 asylum seekers surveyed, 72% were unaware prior to arriving in the UK that asylum seekers are not allowed to work. This data suggests that other significant factors influence migratory decision making beyond knowledge of work permits, such as the presence of family members and migrant communities, and host language proficiency. Additionally, research indicates that asylum applications experience a negligible decrease if at all when the unemployment rate increases or when a ban on working is established. For instance, Zetter et al. (2003) [4] noted that restrictions on work and welfare were introduced in Germany during the 1980s, yet applications increased and peaked in 1992.

Therefore, viewing work permits for asylum seekers as a ‘pull factor’ mistakenly assumes that migrants possess comprehensive knowledge about their economic rights prior to their journey and overlooks more complex dynamics in migratory decision-making, such as household dynamics, historical context, and transnational networks. To grasp these complexities and identify the accurate 'pull factor' and 'push factor', the combination of counterfactual analysis and qualitative research in origin countries and along migratory routes is advisable [5]. Depending on migrants' circumstances and social factors, there may be cases where a work permit can become a 'pull factor'. However, at the very least, it is advisable to be skeptical towards claims that it is an absolute 'pull factor'.

Unless there is a change in the structural factors driving in undocumented migration, asylum seekers will continue to arrive, even if work permits are granted to asylum seekers. Therefore, while simultaneously considering policies aimed at reducing undocumented migration, such as expanding legal and safe migration pathways, it is more feasible to encourage the employment of asylum seekers and mitigate their burden on the social welfare system, as I will discuss later.

Another Form of “Illegality”: Undocumented Stay and Work After the Asylum Refusal

While it is doubtful or at best context-specific about whether work permits can be a ‘pull-factor’ for undocumented entry, the issuance of work permits can lead to other forms of undocumented behaviour. In other words, it may contribute to neglect of the option of voluntary or forced return (removal). Allowing asylum seekers to work could strengthen their ties to the host country and make the prospect of returning less appealing [6]. Consequently, they might remain in the country even after their asylum claims have been rejected, without any legal authorization for residence or work.

This situation is sometimes addressed through the implementation of policies such as the one introduced in Sweden, where work permits are exchanged for a commitment to return in the event of asylum refusal [7]. By ensuring cooperation regarding return in the event of failed asylum claims, individuals can secure a work permit during the asylum process. This measure serves to deter undocumented stays and work following the refusal of asylum.

Economic Impacts

The economic impacts of allowing asylum seekers to enter the formal sector need to be evaluated from two perspectives: (i) the extent to which asylum seekers will make fiscal contributions to host societies and (ii) the extent to which the inflow of asylum seekers into the labour market will create competition with native workers. Asylum seeker participation in the labour market may yield short-term economic benefits. Lift the Ban (2020) [8] estimates that if half of asylum seekers awaiting asylum decisions for over six months were allowed to work full-time at the national average wage, the British government could gain £73.1 million annually from their tax and national insurance contributions. However, it is important to consider the degree to which asylum seekers will make net fiscal contributions, paying more in taxes than the costs of providing them with welfare benefits and public services. Given that refugees are less likely to make fiscal contributions than other migrants [9], asylum seekers are likely to follow the same trend.

Another aspect to consider is that granting work permits to asylum seekers may negatively impact native workers' employment and wages by creating competition between them. Braun and Mahmoud (2014) [10] found reduced native employment due to inflows of East German migrants to West Germany post-World War II. Also, Bahar et al. (2021) [11] observed negligible labour market effects in Colombia following a large-scale amnesty program for undocumented Venezuelan migrants, except for minor impacts on formal employment.  While these case studies do not specifically address asylum seeker situations, they can provide a rationale for governments to limit job options for asylum seekers and regulate the influx of asylum seekers into specific labour markets. Directing asylum seekers toward sectors facing labour shortages and where competition with native workers is unlikely might help mitigate adverse effects on the employment and wages of native workers.

However, the ability of asylum seekers to work does not always have a negative impact on native workers. This is because it depends on how many asylum seekers end up working. Asylum seekers often have difficulty finding a job and earning wages that are correspondent to their educational levels. According to a survey conducted by Lift the Ban (2020), 74% of respondents (UK asylum seekers) have secondary-level education or higher, and 37% have a university degree, which is only 5% lower than that of the rest of the UK [12]. Despite their educational attainment, they struggle to secure employment opportunities. According to the same survey, of the thirty-six people who applied for work permits after waiting for over 12 months, only eight were granted permission, and only two of them managed to find employment afterwards [13].

This result resonates with larger-scale data in 2022 from the Migration Observatory, which indicates that non-EU-born asylum seekers in the UK were more likely to be unemployed than those who migrated for employment, family, or study. While the unemployment rate among the former was 12%, it ranged among the latter from 2 to 6 per cent [14]. Moreover, even if asylum seekers secure employment, it takes time for them to earn wages commensurate with their educational level or equivalent to other types of migrants. For example, research shows that while the employment gap between asylum seekers and other types of migrants converges over time, those in weekly earnings and hourly wages do not narrow [15].

In sum, although granting work permits to asylum seekers may cause competition between them and native workers, it is crucial to keep in mind that asylum seekers would struggle to find a job. Therefore, how many asylum seekers will end up working and how much fiscal contribution they will make should be considered.

Psychological and Social Impact

Access to the labour market can have a positive impact on the mental health of asylum seekers. Asylum seekers often experience insecurity about their future and a sense of being stuck due to pending asylum cases. However, engaging in purposeful activities such as work might help them address these concerns [16]. Being able to work may facilitate the integration of asylum seekers including economic dependence, the improvement of living standards and social integration [17]. One study [18], through its interviews with refugees and migrants in the UK, demonstrated that most of them (the exact number was not specified) view work as a key component of integration. They perceive work as enabling them to establish the foundation for their livelihood. While the data presented is not solely limited to asylum seekers, it would be reasonable to assume that the findings also apply to asylum seekers.

Furthermore, granting work permits to asylum seekers can have a positive impact on other elements of integration such as the acquisition of language skills, and cultural values. For example, one survey [19] asked 207 migrants about the place where they learn the most about the British community and values, with 43% saying from the workplace, 15% from neighbourhood and community, and 15% from mainstream media. Here, it is crucial to consider how temporal and cumulative impact the integration of asylum seekers into the workforce. As Ruiz and Vargas-Silva (2021) [20] argue, when asylum seekers face prolonged periods with limited access to jobs, their economic integration slows down.

Marbach et al. (2017) [21] conducted a study in Germany where a court decision led to a shorter employment ban period. They found that, five years after the waiting period was reduced, refugees who initially had to wait an extra seven months before entering the job market had employment rates about 20 percentage points lower. In this sense, it is advisable to allow asylum seekers to work at an early stage of their application if governments want to facilitate the successful integration of asylum workers into society

Conclusion

Viewing work permits for asylum seekers as a ‘pull-factor’ for undocumented migration and asylum applications overlooks situations where other factors play more significant roles. The exact effect of work permits, and the complex dynamics of migratory decision-making require counterfactual and qualitative analysis. To evaluate its economic impact, it is imperative to consider how many asylum seekers will end up working and how much fiscal contribution they will make. Regarding psychological and integration aspects, access to the labour market can have a favourable impact on asylum seekers' mental health and facilitate their integration into society if they are permitted to work early in the application process.

References

1. Gower, M., McKinney, C. and Meade, L. (2019). Should asylum seekers have unrestricted rights to work in the UK? UK Parliament [online] Available at: https://commonslibrary.parliament.uk/research-briefings/sn01908/.

2. Walsh, P.W. and Sumption, M. (2023). UK policies to deter people from claiming asylum. [online] Migration Observatory. Available at: https://migrationobservatory.ox.ac.uk/resources/commentaries/uk-policies-to-deter-people-from-claiming-asylum/.

3. Lift the Ban (2020). Lift the ban: Why giving people seeking asylum the right to work is common sense. London: Lift the Ban Coalition.

4. Roger Zetter, David Griffiths, Silva Ferretti, Martyn Pearl (2003) ‘An Assessment of the Impact of Asylum Policies in Europe 1990- 2000’, Home Office Research Study 259;

5. Walsh and Sumption supra reference 2.

6. Valenta, M. and Thorshaug, K. (2013). Restrictions on Right to Work for Asylum Seekers: The Case of the Scandinavian Countries, Great Britain and the Netherlands. International Journal on Minority and Group Rights, 20(3), pp.459–482. doi:https://doi.org/10.1163/15718115-02003006.

7. Migrationsverket (2023). Asylum seekers who have a job. [online] www.migrationsverket.se. Available at: https://www.migrationsverket.se/English/Private-individuals/Working-in-Sweden/Employed/If-you-are-in-Sweden/Asylum-seekers-who-have-a-job.html

8. Lift the Ban supra reference 3.

9. Migration Observatory. (2023). Why the government’s economic Impact Assessment of the Illegal Migration Act tells us little about the Act’s economic impact. [online] Available at: https://migrationobservatory.ox.ac.uk/resources/commentaries/why-the-governments-economic-impact-assessment-of-the-illegal-migration-act-tells-us-little-about-the-acts-economic-impact/.

10. Braun, S. and Omar Mahmoud, T. (2014). The Employment Effects of Immigration: Evidence from the Mass Arrival of German Expellees in Postwar Germany. The Journal of Economic History, 74(1), pp.69–108. doi:https://doi.org/10.1017/s0022050714000035.

11. Bahar, D., Ibáñez, A.M. and Rozo, S.V. (2021). Give me your tired and your poor: Impact of a large-scale amnesty program for undocumented refugees. Journal of Development Economics, 151, p.102652. doi:https://doi.org/10.1016/j.jdeveco.2021.102652.

12. Lift the Ban supra reference 3.

13. Lift the Ban supra reference 3.

14. Fernández-Reino, M. and Rienzo, C. (2024). Migrants in the UK Labour Market: An Overview - Migration Observatory. [online] Migration Observatory. Available at: https://migrationobservatory.ox.ac.uk/resources/briefings/migrants-in-the-uk-labour-market-an-overview/.

15. Ruiz, I. and Vargas-Silva, C. (2017). Differences in Labour Market Outcomes between Natives, Refugees and Other Migrants in the UK. SSRN Electronic Journal. doi:https://doi.org/10.2139/ssrn.2920574.

16. Burnett, A. and Ndovi, T. (2018). The health of forced migrants. BMJ, p.k4200. doi:https://doi.org/10.1136/bmj.k4200.

17. Kierans, D. (2021). Integration in the UK: Understanding the Data. [online] Migration Observatory. Available at: https://migrationobservatory.ox.ac.uk/resources/reports/integration-in-the-uk-understanding-the-data/.

18. Rutter, J., Latorre, M., and Sriskandarajah, D. (2008). Beyond naturalisation: citizenship policy in an age of super mobility, London: IPPR.

19. Migrants Resource Centre. (2018). Integrated Communities Strategy: MRC submission of evidence and response to the government green paper consultation

20. Ruiz, I. and Vargas-Silva, C. (2021). What Works for Improving Refugee Outcomes in High-Income Countries? Policy Insights for the UK. [online] The Centre on Migration, Policy & Society (COMPAS). Available at: https://www.compas.ox.ac.uk/wp-content/uploads/What-Works-for-Improving-Refugee-Outcomes-in-High-Income-Countries-Policy-Insights-for-the-UK.pdf.

21. Marbach, M., Hainmueller, J. and Hangartner, D. (2017). The Long-Term Impact of Employment Bans on the Economic Integration of Refugees. SSRN Electronic Journal. doi:https://doi.org/10.2139/ssrn.3078172.

The Necessity of Cluster Bombs in Ukraine’s Fight Against Russia

Autumn Perkey

At a café bombing on Oct. 5, 2023, 49 Ukrainians were killed. Ukrainian air defenses remain weak, and the continued Russian attacks on civilian infrastructure have damaged the electric grid and water supply in critical areas. Future aid packages need to be approved as swiftly as possible, and they should include any means necessary to defend against Russian adversaries, including cluster munitions. 

In July 2023, the U.S. sent a military aid package worth over $800 million, sent at a point in time when the Ukrainians were running out of options, including access to the necessary resources to defend. Amongst the aid sent, this included cluster munitions. Debates have arisen about whether the United States should send cluster munitions to aid in the fight against the Russian invasion. While there are considerable moral consequences and debates about their uses, Ukraine needs an aggressive aid package including the means to defend, which includes the use of cluster munitions. The aggression demonstrated by Russian forces warrants sending military aid packages that include any means necessary to assure Ukrainian defense, including sending the debated cluster munitions.

123 countries including the UK and Spain have outlawed cluster bombs, signing what’s known as the Convention on Cluster Munitions established in 2010, due to the potential harm to civilians. This can happen when the bombs land incorrectly or the fuse does not function properly. 

When the smaller bombs are released, they pose a risk of indiscriminately killing over a wide area. However, these bombs are not banned by the countries directly involved in the decision to use them, the U.S., Russia, and Ukraine. Russian forces have already been using cluster bombs in Ukraine, and the Russian counterparts have a failure rate of 30-40%. However, the failure rate of U.S. cluster bombs is only 1-2%. While there is a risk to civilians due to the potential failure rate, effective bomb damage assessment will help reduce these risks while providing necessary support against Russian atrocities. Balancing the use of cluster munitions with the protection of civilians is difficult, but in 2021 there were no reported deaths from initial cluster attacks. 

While effective bomb damage assessment may limit the collateral harm caused by cluster bombs, as of 2008 the United States has stopped producing them. Cluster munitions are not ideal against all targets, for example, standard unitary warheads are more effective against point targets like buildings. The use of cluster munitions by Ukraine has been limited in capacity. In their first use in March of 2022, Ukraine forces used cluster munitions near Husarivka, an agricultural village, near Russian military headquarters. During this strike, there were no reported deaths, and the target was a military one. In comparison, Russia has indiscriminately used cluster bombs throughout Ukraine leading to hundreds of civilian casualties. According to the Cluster Munition Coalition (CMC) estimates between February to July 2022, there have been at least 689 civilian casualties due to cluster bombs most likely associated with Russia’s indiscriminate use or when used improperly within cities are densely populated areas.  

As of 2021 149 civilians were harmed by cluster munitions worldwide. This statistic focuses on their use in urban areas, where the overall risk of collateral damage is always higher and is not their intended use. Feedback from the frontlines has asserted that rather than using the cluster bombs indiscriminately, Ukrainian forces have been using them effectively and targeted to break through Russian defenses. The areas in which these bombs are being used are cluttered with Russian antitank, antipersonnel mines and trip wires focusing on a military target, rather than civilian infrastructure and populated areas. 

In Ukraine, the case for using cluster munitions is strong. According to U.N.-backed investigations, there is proof of significant Russian war crimes in Ukraine. The original airstrike in Mariupol in 2022 killed hundreds huddled inside a theater. Along with this are the numerous strikes Russia has repeated against Ukrainian infrastructure leading to leaving civilians without heat and electricity during some of the coldest months. These direct abuses against international law, do not even begin to account for the widespread use of torture towards non-combatants by Russian forces, including women and children. 

From February 24, 2022, to August 13, 2023, 26,384 civilian casualties have been reported in Ukraine. At least 9,444 civilians died during the Russian invasion as well as 16,940 being injured. While these are the known deaths and injuries, the Office of the High Commissioner of Human Rights of the United Nations anticipates that the actual numbers are much higher. Numerous civilian atrocities have occurred justifying the U.S. sending the debated cluster bombs back in July of 2023. The continued Russian terrorism, such as the October 5 strike warrants future aid packages that contain any means necessary for Ukrainian defense. These atrocities are unacceptable and warrant the use of the extreme bombs that were sent. While cluster bombs are outlawed by 123 countries, the potential harm of inaction necessitates the risk taken. Further delays in military support through back stocked cluster munitions, will likely lead to more humanitarian abuses by Russian forces, including the torture of civilians. 

Overall, Russian cluster munitions fail 169-176% more than the counterparts sent to aid Ukrainians. The failure rate, meaning the likelihood of unexploded bomblets remaining after a cluster bomb is launched, has come back from Ukraine at 2.35 percent, while this is not at the expected threshold of 1-2%, it is still significantly lower than the cluster bombs being deployed by Russian forces (30-40% failure rate). While the UK, Spain, and Canada have spoken out against the U.S. decision to send the cluster bombs, Germany’s president has said that he understands the U.S. decision and it should not be blocked. While Germany still defends its position against the use of cluster bombs in general, the statement has been made that if Ukraine no longer has the means to defend itself, it will mean the end of the country. In the case of the U.S.-sent cluster bombs, the ends necessarily justify the means. 

Currently, the Ukrainians are halted from pushing back the Russian adversaries in the eastern Donetsk region. Valergy Zaluzhny, Ukraine’s military commander-in-chief has attributed the halt to a lack of adequate firepower to break through Russian defenses. Additionally, this effort has been supported by Ukrainian President Zelensky as much-needed military aid. 

Feedback from Ukraine as of July 2023 to the White House is that the cluster munitions were being used quite effectively to push back Russian forces. While it is unlikely this weapon alone will lead to a victory, the reality is that to counter Russian utility and capability these tools are a necessary means to an end. The additional limitations exist in the fact that there are no other readily available weapons to provide the type of support cluster munitions can provide. Currently, the supply of cannon artillery that acts similarly to a fuse is at an all-time low, as well as the supply of MLRS rockets (which are currently out of production and have been for some time). 

Within two weeks of the first cluster munitions aid package, the fighting in Kupiansk remained rough, but with the benefit of additional tools of warfare, Ukrainian forces were able to hold the line against the Russian forces attempting to seek territory by targeting Russian armored vehicles. Kupiansk has been undergoing a regular bombardment of Russian artillery for months and is at risk of civilian death and collateral damage if Russian forces continue their advance upon the city. Cluster munitions can be used to deter the takeover of the city and possibly prevent and deter Russian bombardment and abuses. 

Critics of the cluster bombs are dealing with a primarily moral dilemma while ignoring the implications of war. The Ukrainians are fighting to survive against an immoral force and need to match capabilities to protect Ukrainian civilians during a brutish invasion. The reality we face is a tradeoff between providing military assistance to a population that is being tortured, raped, and victimized, or allowing the adversary to maintain an upper hand. Providing military aid may often be limited by what munitions remain in stock, if that option is limited to cluster munitions, and they are used effectively, it is better than no support at all as a defensively Ukraine will lead to a stronger Russian opposition which has proven a threat to civilians and civilian infrastructure. 

Canada and the Treaty on the Prohibition of Nuclear Weapons (TPNW)

michael levinson | News Editor

Former Canadian Senator Douglas Roche spoke bluntly on Canada’s refusal to sign the Treaty on the Prohibition of Nuclear Weapons (TPNW). “No wonder Canada didn’t get elected to the UN Security Council.”

Roche echoes a growing refrain that includes the New Democratic Party (NDP), Green Party, Bloc Québécois, as well as notable Canadian politicians such as Lloyd Axworthy and Jean Chrétien, all urging Prime Minister Justin Trudeau to sign the treaty. But Trudeau remains defiant. He deemed the UN conference which devised it “sort of useless,” instructed Canada’s UN delegation to boycott the negotiations, and continually asserts that Canada’s NATO membership precludes its participation.

Is it unbecoming for Canada — the nation which spearheaded the movement to ban anti-personnel landmines and one of the most steadfast historical advocates for non-proliferation — to resist these pressures? Seventy-three percent of Canadians think so. But even for doves, the answer should be “no”.

The TPNW’s ban on nuclear weapons does not serve Canadian interests because it would weaken the US’ ability to deter nuclear threats that protects Canadians and democracies at large. Research suggests that when leaders ignore the TPNW it does little to quell public pressures to sign. Trudeau should plainly address Canadians and set the record straight. He should acknowledge that the broad-based effort to ban nuclear weapons is well-intentioned but falls short due to its potential to limit deterrence mechanisms that have helped avoid a nuclear winter. Finally, Trudeau should explain that an outright ban helps even the field for revisionist powers such as North Korea to take advantage of a potential nuclear void.

In this new kind of prisoner’s dilemma, the TPNW places a greater onus on democratic states to disarm than authoritarian ones. But ‘taking the high road’ is not admirable — it is reckless. Canada must instead regain credibility on disarmament by focusing its efforts on encouraging the US, China, and Russia to come together directly and negotiate a multilateral agreement to reduce nuclear arsenals.

The TPNW, which entered into force in 2021, aims to stigmatize nuclear weapons to the point where they no longer pose a viable threat. To achieve this, state parties agree to never develop, transfer, or in any way encourage the proliferation of nuclear weapons. Those that already have nuclear weapons must work towards their “irreversible elimination.” 

The TPNW can be seen as a good faith but idealistic way to deal with frustrations regarding the flagship treaty on nuclear weapons, the Nuclear Non-Proliferation Treaty (NPT). A product of détente during the Cold War, the NPT permits the five UN Security Council veto states — the US, UK, France, China, and Russia — to keep their nuclear stockpiles with certain restraints. The rest give up their right to nuclear weapons entirely and agree to specific safeguards on nuclear energy. The NPT has been successful in limiting proliferation; there is an adage that most states comply with their treaty obligations most of the time. Overall, the NPT has made it less appealing and more difficult to acquire nuclear weapons.

But the pace of nuclear disarmament has been abysmal. The US and Russia have a combined 11,000 nuclear warheads, enough to end the world many times over. However, “if the sole goal of the global nuclear order were to avoid nuclear use, the obvious solution would be abolition.” Rather, nuclear-armed states believe nuclear weapons provide security in a challenging strategic environment. For instance, Canada’s involvement in the North American Aerospace Defense Command (NORAD) and NATO, place it firmly within the US’ nuclear umbrella. Security guarantees, like those given to Canada by the US, have been shown to reduce the possibility of a state otherwise acquiring weapons on their own. While the NPT still espouses complete disarmament as a goal, it is premised on the idea that a nuclear hierarchy among states, or a global nuclear order, “has done its part to help keep the world from going over the precipice.”

Some supporters of the TPNW maintain that though opposition to the treaty is predictable, its overall effect is to give rise to a ‘nuclear taboo’ that will become so powerful it will soon be customary international law. If this is the primary mechanism through which the world gives up on nuclear politics entirely, it is doomed to fail. Customary international law (which applies to all states irrespective of treaty obligations) does not develop simply when a practice is widespread. For it to materialize, it must also satisfy opinion juris: meaning a state is engaging in that practice because it is believed to be international law. As Chatham House opined, “this is far from an automatic process […] even if a rule is indeed created, states that have objected to a certain degree to its emergence — so-called persistent objectors — will not be bound by it.”

Other supporters of the TPNW concede that while achieving a complete ban of nuclear weapons is unlikely, a universal treaty that is not accepted by nuclear-weapons states is better than none. The University of Melbourne’s Maria Rost Rublee, for instance, argues that while the landmine ban treaty has not been ratified by the US, the US has not deployed them for two decades. In that case, the normative power of the treaty has superseded its lack of universality.

But landmines are different from nuclear weapons. Nuclear weapons have not been used in war since 1945, their catastrophic effects are increasingly understood, mutually assured destruction looms large, and they are rarely embedded in conventional forces. Writing about Russia’s recent nuclear threats to Ukraine, Alexander Bollfrass said “fortunately, the foundation of international nuclear governance is more robust than is often assumed.” The NPT, for example, is complemented by various arms-control agreements, extended deterrence arrangements, and expectations of negative reinforcements like sanctions if nuclear norms are violated.

Given no nuclear-armed states have signed the TPNW, it will only serve to limit deterrence in practice. And as authoritarian states such as Russia and China are more immune to public pressures than democracies, it will primarily affect Western states’ deterrence capabilities. North Korea seems to have recognized this, voting in favour of establishing a formal UN mandate to commence negotiations for the TPNW in 2016. Kim Jong Un is taking advantage of our democratic processes — he is playing the West for a fool.

In several NATO countries, over 75% of respondents said they support the TPNW. If this support is translated in the ballot box, leaders will eventually give in. What would that mean? Contrary to what Justin Trudeau has claimed, there is a growing body of research showing that NATO members are not barred from signing the TPNW but must commit to giving up nuclear weapons stationed in their territory. So if a NATO member becomes a party to the TPNW, it would have to forfeit key defensive arrangements. Turkey, Italy, Belgium, Germany, and the Netherlands, for example, all host US warheads. While housing these weapons in Europe is a relic of Cold War strategy, “withdrawing them would send a dangerous message of U.S. retrenchment to would-be adversaries in Europe and beyond.” And as the war in Ukraine continues, some say that the weapons can be used as leverage in negotiations with Russia.

Further, although Canada does not house nuclear weapons, the TPNW’s prohibition of its members to “assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party,” may undermine Canada’s involvement in NORAD. The NORAD air defense agreement is premised on the fact that regardless of the speed of the disarmament process, “large nuclear arsenals still exist, deliverable by strategic ballistic missile, cruise missile or long-range aircraft capable of striking North America.” This fundamentally practical alliance will be effectively destroyed by signing the TPNW.

Increasing public pressure on democracies to sign the TPNW also comes at a time when North Korea is testing longer-range ballistic missiles, Iran remains a threshold power on the precipice of a bomb, China is developing its nuclear triad, and Russia is modernizing its strategic nuclear capabilities with state-of-the-art hypersonic glide vehicles. It is unwise to cede the upper hand. To re-establish Canada’s credibility on nuclear disarmament while avoiding the TPNW, therefore, Trudeau should encourage the US, China, and Russia to come together directly and negotiate a multilateral agreement to reduce nuclear arsenals. Or, as was suggested for Japan (which is facing similar pressures to sign), Trudeau should make it a priority to invest heavily in a specific aspect of nuclear security, such as improving safeguards on nuclear energy.

Whatever the response, Trudeau must not ignore the TPNW — it is here to stay and is only gaining more momentum. It would also be prudent to continue to engage with UN conferences and TPNW meetings to further demonstrate Canada’s continued commitment to multilateralism.

That means embracing Canada’s diplomatic tradition, responsibly.

Empowering India's Sustainable Development: The Crucial Role of Hemp

Khushi Maheshwari and Pratham Maheshwari

Humanity continues to endure catastrophic environmental damage. 2023 was the warmest year on record by far and the Doomsday clock is set at just 90 seconds to midnight. In such dire circumstances, even a glimmering hope can prove to be a blessing. Indeed, hope can be found at the literal grassroots in the form of a surprising commodity - hemp - in the world’s most populous country, India.

Hemp’s value can be best realized in a country best suited to become a world leader in its wider proliferation: India. Hemp has 25,000 proven applications ranging from textiles to food. It also flourishes without a heavy reliance on pesticides and fertilizers, and overall is a relatively low maintenance, and therefore agriculturally cost-effective, crop. Hemp can yield 3-8 tones of fiber in a single acre, 4 times that of an average forest while producing 25 times more oxygen. It is also a carbon-negative crop that absorbs carbon dioxide from the environment, with each kilogram of hemp absorbing 1.8-2 kilograms of carbon dioxide. It requires less than half the amount of water required to produce cotton, and rather than absorbing nutrients from the soil, hemp returns 60-70% of nutrients to the soil, promoting its future fertility. Hemp is also blessed with a brief crop cycle of approximately 12 weeks. One of the strongest natural fibers, hemp textile fiber is known to be biodegradable, hypoallergenic, antimicrobial, porous, durable, breathable, and comfortable, and can also help to regulate body temperature as it facilitates air to circulate around our skin when compared to other fabrics.

The global hemp fiber market is expected to reach 26 billion dollars by 2026 and the global medical hemp market is projected to exceed 82 billion dollars during the ensuing year. Capturing such a rapidly growing market and becoming a global leader in the industry  could do wonders for India. Hemp production is greatly needed to address issues such as unemployment, water scarcity, and limited availability of land; in the latter case, hemp has been heralded as a pristine candidate to repair damaged Indian soil through the process of phytoremediation.

Moreover, the use of hemp has roots in Ayurveda, a school of Indian alternative medicine. In the counterpart school of Atharvaveda, hemp is considered one of the five most sacred plants. Hemp was widely used in ancient India due to its medicinal and nutritional value. It was also used in textiles and even as hempcrete to construct the famous Ellora Caves, which has prevented their degradation for 1500 years. 

The regulation of hemp in India began during the colonial era when cannabis was restricted across British colonies. The Indian Hemp Drugs Commission (1894-1895) criminalized and suppressed cannabis cultivation and processing. Currently, hemp is regulated by the Narcotic Drugs and Psychotropic Substances Act, of 1985, which was passed by the Rajiv Gandhi administration under the influence of the American Reagan administration for over two decades. The act legally defined hemp as cannabis due to the taxonomical origin of hemp flowers from the same family of plants as marijuana. This proved an impetus for taboos, myths, and misconceptions about hemp. Hemp, however, crucially lacks the psychoactive effects of marijuana when consumed. Marijuana arises from a female Sativa plant containing psychoactive tetrahydrocannabinol (THC) that is consumed for recreational purposes. Hemp contains less than 0.3% THC. Still, the narrative of suspicion persists in the minds of Indian consumers.

The peculiar intensity of the Indian taboo against hemp is evinced by the country’s seemingly contradictory relationship to bhang, a plant prepared from the seeds and leaves of the cannabis plant, which is legal in India. Regulated by some states, it is used as a form of medicine and also enjoyed in festivals. Its origins trace back thousands of years when Cannabis Indica was used to worship Lord Shiva. A plausible explanation is that bhang is shielded from disrepute by its holy connotations. In a country imbued with strongly held religious beliefs and a strong commitment by many to India’s unique and storied traditions, hemp has slipped through the cracks, its rich heritage tainted by a perception imported from colonizers.

COP 28 recognised significant Indian environmental achievements, including progress toward a 33% reduction in emissions and the achievement of Nationally Determined Contribution (NDC) targets 11 years ahead of schedule. India has also greatly expanded its electric grid capacity, sourcing 80% from non-petrocarbon resources. However, COP 28 had nary a whisper about hemp. India is a land of manufacturers and businessmen who can capitalise on hemp, advancing environmental targets, bringing attendant international renown to India, and thereby building a pivotal point for India by making it a sustainable land and potentially generating a trillion dollar market for the Indian economy.

Legalization could be a first, normative, and positive step. Stereotypes must be combated by educating communities and spreading awareness. With widespread cultivation, India would not only benefit from an environmental surplus but also achieve economies of scale. A rational approach to structural change must, in this case, start at the top. However, the relationship between social narratives and policymaking is frustratingly circular, requiring courageous effort to break the chain of stigma and suppression of a potentially vital industry. 

Understanding the South China Sea Dispute through UNCLOS III, Nine-Dash Line and Philippines v. China

pragyan khare

Abstract

A hostage situation usually plays out like this: One party illegally takes control of an ‘entity’ while the other party is left helpless in the face of such violence, lacking any options to fight back or deter the opposing party. The innocent party is left to beseech a distinct third party, usually law enforcement, to ‘pull off a miracle’ and rescue them from this hellish situation. What if, however, the hostage situation plays out on a national level, with no real end in sight and a distinct lack of a powerful third party to ‘pull off a miracle?’ And what if the entity in question is not just a living person or persons, but a sea encompassing an area of around 3,500,000 km square, boasting of innumerable resources and is an economic boon to the affected party? That is exactly what the South China Sea is. This article attempts to dissect the South China Sea dispute through the perspective of the most proactive State in the region – China. The focus of this paper is a thorough evaluation of the conflict between China and Vietnam and China, and the Philippines as regards the South China Sea. This shall be done by evaluating UNCLOS III provisions in the region and the legality of the Nine-Dash Line by examining the Philippines v. China ruling. 

The Dragon in the Room - China

The South China Sea is of great importance to the countries in its vicinity, serving as a crucial source of income, hosting enormous fisheries which contribute 12% of the world’s annual fish harvest.[1] With vast untapped reserves of natural gas and oil, amounting to approximately 190 trillion cubic feet and 11 billion barrels respectively, it plays a pivotal economic role for the regional countries.[2] Handling $3 trillion in trade annually[3] and accounting for over a third of global marine traffic,[4] the South China Sea connects China, Taiwan, Japan and South Korea to world markets.[5]

Consequently, the region has become a focal point of conflicting maritime jurisdictions, which elevates tensions and transforms the area into a volatile arena in conjunction with competing territorial claims. Despite relative peace in the early 21st century, recent events have pushed the neighbouring countries to take an antagonistic role towards the Middle Kingdom, risking a complete destabilization of the entire region and possibly the world at large.[6]

China asserts sovereignty over 80% of the South China Sea, including the Paracel Islands, Spratly Islands and Scarborough Shoal.[7] This vast maritime claim extends over 800 nautical miles from the Chinese island province of Hainan, overlapping with territories claimed by Vietnam and the Philippines.[8] China’s vital interests in the South China Sea are underscored by the fact that over 80% of China’s energy imports and nearly 40% of its total trade passes through the region.[9] This strategic control of important shipping lanes aligns with China’s objective of global superpower status and access to vast oil reserves, crucial for the world’s largest energy consumer.[10] According to scholar James Kraska, the dispute fundamentally revolves around China’s pursuit of global power status and strategic hegemony over the region.[11]

Maritime security further motivates China’s aggressiveness, as ongoing disputes and escalating tensions have presented challenges for shipping.[12] Over 80 percent of China’s imported oil passes into the South China Sea via the Strait of Malacca.[13] Should the Strait of Malacca be closed down and used as a strategic chokepoint by China’s rivals, alternate routes for shipping would include either the Sunda or the Lombok Straits, adding not just weeks for the ships to reach other markets, but also using more energy to reach their destinations.[14] Thus, a closure would have far-reaching consequences for the oil-hungry State. This has been described as the “Malacca Dilemma”, the phrasing coined by President Hu Jintao, which refers to China’s vulnerability should the Strait be closed down and the lack of possible alternatives.[15] To counter such a disastrous possibility, China has resorted to militaristic belligerence in the South China Sea to avoid the likelihood of the “Malacca Dilemma” taking place, aiding in the Chinese rationale of claiming sovereignty over the South China Sea.

The ‘Nine-Dash Line’ is Beijing’s primary legal basis for its claims, dating back to 1946 when the Republic of China claimed the Paracels, Pratas and the Spratly Islands following Japan’s surrender according to the Cairo Declaration[16], which stated “[that] Japan shall be stripped of all the islands in the Pacific which they have seized…. and all the territories that Japan has stolen from China…. shall be restored to the Republic of China.”[17] In 1947, the Republic of China published a map featuring an eleven-dash line delineating the geographic extent of its authority in the South China Sea.[18] After the Communist victory in 1949, The People’s Republic of China adopted the claim[19] and simplified it to nine dashes for convenient demarcation.[20]

The ambiguity of the Nine-Dash Line paradoxically allows it to be one of the most potent tools in the Chinese arsenal. It allows for Chinese foreign policy to remain flexible, as, on the one hand, it can give way to a ‘soft’ approach when dealing with the ‘noisy neighbours’ by being treated as an imaginary concept envisioned only in maps. On the other hand, it allows Beijing to alternate to a ‘hard’ way by mentioning the Nine-Dash Line to indicate displeasure. Despite the prominence of the Nine-Dash Line, it is still considered a flimsy legal pretext which serves primarily as a cover for Chinese expansionism. Professor Clive Schofield highlighted its ambiguity, reasoning that it switches from being a claim to sovereignty over all the territory bound by the lines, to a unilateral claim, to a maritime boundary, and to a form of historic waters, intended to cause confusion as to how to tackle this Hydra of a policy decision.[21]

UNCLOS III and the Question of Law

In 1982, the United Nations held the third Conference on the Laws of the Sea (UNCLOS III).[22] Although the convention yielded no provisions to determine sovereignty over off-shore islands, it has numerous provisions directly relevant to the dispute and legally binding on all parties involved, as all claimants involved in the conflict are signatories of UNCLOS III. Not only did it clarify the breadth of a territorial sea to be up to 12 Nautical Miles[23], it also allowed for the establishment of Exclusive Economic Zones (hereafter – EEZ) extending up to 200 Nautical Miles from the baselines from which breadth of territorial sea is measured.[24] Within this EEZ, the State holds exclusive rights to exploit sea life and other natural resources.[25] In a departure from UNCLOS I, islands have an added caveat where they must be capable of sustaining human or economic life on their own.[26] Article 60(8) of UNCLOS III states that although a State has the authority to build and operate artificial islands within their EEZ, they are distinguished from ‘islands’ and thus have “no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the EEZ or the continental shelf.”[27] Additionally in the South China Sea, many features can be categorised as low-tide elevations, which are distinct from islands and defined under Article 13(1) of UNCLOS III as ‘A naturally formed area of land which is surrounded by water at low tide but submerged at high tide.’[28] Consequently, low tide elevations are not capable of generating maritime claims, just like rocks.

In 1996, China declared a series of straight baselines around the Paracels, from which its territorial sea ought to be measured, thus not only extending Beijing’s territorial sea claim, but also declaring all space within the baselines constitute its internal waters.[29] Thus, China claims the same rights as archipelagic States.[30] UNCLOS III, under Article 49[31], states that the “Sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines…..regardless of their depth or distance from the coast.”[32] The ruling laid down in the Philippines v. China (2016)[33] denied China the status of being an archipelagic State.[34] Article 47 of UNCLOS establishes basic rules, such as baseline segments not exceeding 100 Nautical Miles and the ratio of water to land enclosed by the baselines not exceeding the ratio of 9:1.[35] The Paracel baselines enclose 17,290 sq. km of water, while the land is only 9.11 sq. km in the Paracels.[36] The ratio is 1898:1. China wishes to establish a territorial sea in the Spratly Islands from artificial islands.[37] However, UNCLOS explicitly prohibits claiming territorial sea from artificial islands, making this a point of contention.[38] China also contends that it has the right to regulate military activity in its Exclusive Economic Zone, a stance not supported by UNCLOS.[39] Lastly, China’s interpretation of the territorial sea asserts that a State has the exclusive right to make, apply and execute its laws in that space without foreign interference.[40] Nevertheless, UNCLOS grants all ships the right of innocent passage through other states’ territorial seas.[41] The right to innocent passage was codified as customary international law in the Corfu Channel Case between the United Kingdom and Albania.[42] The ICJ held that due to the continuous use of the channel for centuries as a ‘practice of customary international law,’ the straits shall be considered an ‘innocent passage.’[43] The same can be said regarding the South China Sea, irrespective of what Beijing proclaims.

Analysis of the Conflict & Philippines v. China

International Law plays a contested yet undeniably relevant role in the South China Sea dispute,[44] where legal legitimacy holds considerable weight in consolidating political gains.[45] China’s actions in the region are intertwined with the question of their legality, and the potential international recognition of its claims would have far-reaching geopolitical consequences. Legal legitimacy is paramount to the Chinese Communist Party (hereafter – CCP). Legal legitimacy provides a framework for governance, fostering stability and public acceptance of their rule. It also helps in boosting international standing, as legal arguments regarding territorial claims strengthen their position on the world stage. This has prompted substantial efforts to research and present China’s legal and historical claims in the South China Sea.[46] Beijing contends that the Nine-Dash Line must be interpreted as a legitimate maritime boundary, and thus, within the line, China has the ability and legal backing to assert sovereignty over the island groups.[47] Thus, not only are the Chinese afforded the rights provided by UNCLOS, but China can assert its historic rights within the Nine-Dash Line, courtesy of Article 14 of China’s law on the EEZ concerning fishing, navigation and exploration of resources.[48]

To advance these interests, China has employed force to occupy islands or reefs, claiming sovereignty through occupation. This has heightened tensions, culminating in 2013 when Manila took the South China Sea dispute to an arbitral tribunal under UNCLOS due to China seizing the Scarborough shoal in Philippine waters and requested the panel to challenge the legality of China’s Nine-Dash Line and historic claims in the South China Sea.[49] The Philippines contended that China’s Nine-Dash Line violated UNCLOS agreements regarding EEZs.[50] China, refusing to participate in the arbitration process, insisted on bilateral negotiations to resolve disputes.[51] It published a position paper in 2014 arguing that the dispute was a matter of sovereignty rather than exploitation rights.[52] On 12 July 2016, the Permanent Court of Arbitration ruled that China’s Nine-Dash Line had no legal basis and China’s actions in Philippine waters violated International Law.[53] The court ruled that none of the territorial features in the Spratly Islands met the definition of an island under UNCLOS.[54]

China strongly criticised the ruling, saying that the verdict had contravened its ‘historical rights’ in the South China Sea, insisting it has had claims over the area for over 2000 years.[55] Analysts like Ian Storey outlined possible reactions – best, bad and worst. [56] China’s response to the ruling seems to be a mixture of the bad and worst ways, hardening its position and taking several unilateral administrative steps to augment its claims.[57] Coercion, rather than reconciliation, seems to have become the norm for Chinese tactics in the South China Sea. It has renamed 80 geographical features of the South China Sea[58] and established two new districts, Xisha and Nansha districts, in the southernmost Chinese province of Hainan to effectively administer South China Sea waters.[59] It has increased its coast guard and military activities in the disputed waters and continually harassed the other nations’ ships, claiming that the coast guard must enforce maritime law and protect China’s sovereignty.[60] A Chinese survey ship, Haiyang Dizhi 8, entered Vietnam’s EEZ near the Vanguard Bank offshore oil block on 3 July 2019.[61] Despite Hanoi’s protests and receiving U.S. condemnation in August, China did nothing to indicate that Haiyang would soon return to Chinese waters. The ship would eventually return in October.[62]

Other States' initiatives to counter Beijing’s aggressive strategy have been lethargic and lacking a joint, determined effort.[63] Nonetheless, some punitive measures have been undertaken by the South East-Asian States against China. For instance, Vietnam passed legislation requiring foreign vessels to give prior information in territorial waters.[64] Needless to say, this too goes against UNCLOS III, of which Vietnam is a signatory. The Philippines, in 2011, renamed the South China Sea as the ‘West Philippine Sea’ in their official documents.[65] The Philippines, in particular, have gone closer in the U.S. sphere due to China’s intimidation tactics, with Washington D.C. seeing an opportunity to contain China and ensure that UNCLOS III is followed as international customary law. In 2014, the Philippines signed the ‘Enhanced Defence Cooperation Agreement’ with the U.S., allowing U.S. troops access to the Philippines’ ports and airfields and conducting joint military exercises.[66]

In World War I, Austria-Hungary’s actions escalated the conflict from a regional dispute to a conflict involving 2 Great Powers on opposite ends, which led to Germany joining the fray to tip the balance of power into favourable hands, leading to France joining Russia and Serbia to prevent a complete hegemony and the rest, as they say, is history. The South China Sea is a dispute eerily reminiscent of the Great War. All competing and rival States engage in extreme puffery, trying to outdo each other in displays of power and projecting strength on other claimant States. As history shows us, the cost of escalation involving Great Powers can quickly become too great to rationally bear.

Conclusion

The South China Sea dispute requires a peaceful resolution to uphold the territorial integrity and maritime sovereignty of China, Vietnam and the Philippines. It lies at the intersection of Public International Law and Municipal Law, questioning the legitimacy of unilateral determinations of national borders. Recognising the strong nationalistic sentiments tied to territory and sovereignty, historical precedent emphasises the need for caution and adherence to International Law.

China’s illegitimate expansion into the sovereign waters of Southeast nations is not only unwarranted but also illegal. As a global powerhouse, China should prioritise upholding international law rather than trying to tear it down. The Chinese State's violation of the right of innocent passage showcases China’s nonchalance towards breaking customary international law, treated as an imposition levied upon Beijing to prevent its meteoric rise to once again reclaim the ‘Mandate of Heaven.’ However, disregarding customary international law doesn’t make many allies in a globalised world.  

China’s forceful stance risks pushing regional nations further towards rival States, particularly the U.S. Should the Philippines continue to grow ever more swayed by Western promises of security, China can become geographically encircled on the Eastern side and lead to elevating the potential of conflict in the region. The situation may likely become like the Russia-Ukraine War, with similar casualties for the aggressor here. Just like Ukraine, the U.S. will not hesitate to send aid to the country being attacked by China to weaken their rival for years to come. This must be borne in mind by the foreign policy minds of the PRC. In a conflict often touted as the first domino in the build-up to a war to end all wars, compromise and equity must reign supreme. Foreign policy decision-making is a dynamic and cooperative process. It is the prerogative of both Beijing and the regional countries to collaborate and prevent unintended conflict escalation resulting from misconceptions.

Bibliography

Cases

The Republic of the Philippines v. People’s Republic of China, PCA Case No. 2013-19.

Statutes

Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397.

17 Third UN Conference on the Law of the Sea, Plenary Meetings, Official Records, U.N. Doc. A/CONF.62/WS/37 and ADD. 1-2, 244 (1973-1982)

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Turker Hasim, "Maritime Chessboard: The Geopolitical Dynamics of the South China Sea." Geopolitical Monitor, 24 August, 2023. https://www.geopoliticalmonitor.com/maritime-chessboard-the-geopolitical-dynamics-of-the-south-china-sea/.

Center for Preventive Action, "Territorial Disputes in the South China Sea." Global Conflict Tracker, 26 June, 2023. https://www.cfr.org/global-conflict-tracker/conflict/territorial-disputes-south-china-sea/.

China Power Team, "How Much Trade Transits the South China Sea." ChinaPower, 2 August, 2017. https://chinapower.csis.org/much-trade-transits-south-china-sea/#easy-footnote-bottom-1-3073/.

Grady John, "Panel: New U.S. South China Sea Report Designed to Push Back Against Beijing’s Expansive Claims." USNI News, 22 January, 2022. https://news.usni.org/2022/01/25/panel-new-u-s-south-china-sea-report-designed-to-push-back-against-beijings-claim/.

Brown J Peter, "Calculated Ambiguity in the South China Sea." Asia Times, 8 December, 2009. https://web.archive.org/web/20100105111857/http://www.atimes.com/atimes/Southeast_Asia/KL08Ae01.html/.

Hannah Beech, "Just Where Exactly Did China Get the South China Sea Nine-Dash Line From." Time, 19 July, 2016. https://time.com/4412191/nine-dash-line-9-south-china-sea/.   

Tullio Treves, "United Nations Convention on the Law of the Sea." Audiovisual Library of International Law, 10 December, 1982. https://legal.un.org/avl/ha/uncls/uncls.html/.

"Signatories for UN Convention on the Law of the Sea." The Danish Institute for Human Rights. https://sdg.humanrights.dk/en/instrument/signees/2487/.

"South China Sea: The Battle for Territory and Resources." Dryad Global. https://dg.dryadglobal.com/why-does-china-claim-south-china-sea>.

Mastro Skyler Oriana, "How China is Bending the Rules in the South China Sea." The Interpreter, 17 February, 2021. https://www.lowyinstitute.org/the-interpreter/how-china-bending-rules-south-china-sea/.

Beckman Robert, "On the United States, the UN Convention on the Law of the Sea and US Freedom of Navigation Operations." Fulcrum, 5 August, 2022. https://fulcrum.sg/on-the-united-states-the-un-convention-on-the-law-of-the-sea-and-us-freedom-of-navigation-operations/.

Freund Eleanor, "Freedom of Navigation in the South China Sea: A Practical Guide." Harvard Kennedy School – Belfer Center for Science and International Affairs, June, 2017. https://www.belfercenter.org/publication/freedom-navigation-south-china-sea-practical-guide#fn5/.

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International Chamber of Shipping. Maritime Security – A Comprehensive Guide for Shipowners, Seafarers and Administrations. (Witherby Publishing Group, 2021).

Journal Articles

Yoshimatsu Hidetaka, “China, Japan and the South China Sea Dispute: Pursuing Strategic Goals Through Economic and Institutional Means,” Journal of Asian Security and International Affairs, vol. 4, no.3 (2017): 294-315. https://www.jstor.org/stable/48602159/.

Herscovitch Benjamin, “A Balanced Threat Assessment of China’s South China Sea Policy,” Cato Institute, 2017. https://www.jstor.org/stable/resrep04873/. 

Clingan Thomas, “Freedom of Navigation in a Post-UNCLOS III Environment,” Law and Contemporary Problems 46, no.2, 1983. https://doi.org/10.2307/1191517/.   

Macaraig Christine Elizabeth & Fenton Adam James, “Analyzing the Causes and Effects of the South China Sea Dispute: Natural Resources and Freedom of Navigation,” The Journal of Territorial and Maritime Studies, vol. 8, no.2 (2021). https://www.jstor.org/stable/48617340.

Kanner Israel & Orion Assaf, “Maritime Claims on the Rocks: The International Arbitration Ruling on the South China Sea,” Institute for National Security Studies, 2016. https://www.jstor.org/stable/resrep08530/.

Guilfoyle, Douglas. “The Rule of Law and Maritime Security: Understanding Lawfare in the South China Sea,” International Affairs 95(5) (2019): 999-1017. https://dx.doi.org/10.2139/ssrn.3378904/.

Works Cited

[1] Hasim Turker, “Maritime Chessboard: The Geopolitical Dynamics of the South China Sea,” Geopolitical Monitor, 24 August, 2023, https://www.geopoliticalmonitor.com/maritime-chessboard-the-geopolitical-dynamics-of-the-south-china-sea/.

[2] Center for Preventive Action, “Territorial Disputes in the South China Sea,” Global Conflict Tracker, 26 June, 2023, https://www.cfr.org/global-conflict-tracker/conflict/territorial-disputes-south-china-sea/.

[3] John Grady, “Panel: New U.S. South China Sea Report Designed to Push Back Against Beijing’s Expansive Claims,” USNI News, 22 January 2022, https://news.usni.org/2022/01/25/panel-new-u-s-south-china-sea-report-designed-to-push-back-against-beijings-claim/.

[4] China Power Team, “How Much Trade Transits the South China Sea,” ChinaPower, 2 August, 2017, https://chinapower.csis.org/much-trade-transits-south-china-sea/#easy-footnote-bottom-1-3073/.

[5] Ibid.

[6] Robert Beckman et. Al, Beyond territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources¸ Cheltenham: Elgar, 2013, 12.

[7] Hidetaka Yoshimatsu, “China, Japan and the South China Sea Dispute: Pursuing Strategic Goals Through Economic and Institutional Means” Journal of Asian Security and International Affairs, vol. 4, no.3 (2017): 294-315. https://www.jstor.org/stable/48602159/. 

[8] Benjamin Herscovitch, “A Balanced Threat Assessment of China’s South China Sea Policy,” Cato Institute, 2017. https://www.jstor.org/stable/resrep04873/.   

[9] Supra, note 3.

[10] “South China Sea: The Battle for Territory and Resources,” Dryad Global, accessed 6 November 2023 https://dg.dryadglobal.com/why-does-china-claim-south-china-sea/.

[11] James Kraska, “The Nine Ironies of the South China Sea Mess,” The Diplomat, 17 September 2015 https://thediplomat.com/2015/09/the-nine-ironies-of-the-south-china-sea-mess/.

[12] International Chamber of Shipping, Maritime Security – A Comprehensive Guide for Shipowners, Seafarers and Administrations (Witherby Publishing Group, 2021).

[13] Supra, note 13.

[14] Supra, note 4.

[15] Paweł Paszak, “China and the Malacca Dilemma,” Warsaw Institute, 28 February 2021 https://warsawinstitute.org/china-malacca-dilemma/.

[16] Japan National DietLibrary, “Cairo Communiqué,” Birth of the Constitution of Japan, National DietLibrary, December 1, 1943, https://www.ndl.go.jp/constitution/e/shiryo/01/002_46/002_46tx.html  

[17] Ibid.

[18] Peter J Brown, “Calculated Ambiguity in the South China Sea,” Asia Times, 8 December 2009, https://web.archive.org/web/20100105111857/http://www.atimes.com/atimes/Southeast_Asia/KL08Ae01.html/.  

[19] Sourabh Gupta, “China’s South  China Sea Jurisdictional Claims: When Politics and Law collide.” EastAsiaForum, 29 July 2012, https://www.eastasiaforum.org/2012/07/29/china-s-south-china-sea-jurisdictional-claims-when-politics-and-law-collide/.

[20] Hannah Beech, “Just Where Exactly Did China Get the South China Sea Nine-Dash Line From” Time, 19 July 2016, https://time.com/4412191/nine-dash-line-9-south-china-sea/.   

[21] Supra, note 6.

[22] Tullio Treves, “United Nations Convention on the Law of the Sea,” Audiovisual Library of International Law, 10 December, 1982, https://legal.un.org/avl/ha/uncls/uncls.html/.

[23] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 3.

[24] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 57.

[25] “Signatories for UN Convention on the Law of the Sea,” The Danish Institute for Human Rights, accessed 5 November 2023, https://sdg.humanrights.dk/en/instrument/signees/2487/.

[26] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 121.

[27] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 60(8).

[28] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 13(1).

[29] “Reading Between the Lines: The Next Spratly Legal Dispute,” Asia Maritime Transparency Initiative, 21 March 2019, https://amti.csis.org/reading-between-lines-next-spratly-dispute/.

[30] Oriana Skyler Mastro, “How China is Bending the Rules in the South China Sea,” The Interpreter, 17 February, 2021, https://www.lowyinstitute.org/the-interpreter/how-china-bending-rules-south-china-sea/.

[31] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 49.

[32] Ibid.

[33] The Republic of the Philippines v. People’s Republic of China, PCA Case No. 2013-19.

[34] Ibid.

[35] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 47.

[36] Supra, note 29.

[37] Supra, note 36.

[38] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 60.

[39] 17 Third UN Conference on the Law of the Sea, Plenary Meetings, Official Records, U.N. Doc. A/CONF.62/WS/37 and ADD. 1-2, 244 (1973-1982).

[40] Supra, note 27.

[41] Convention on the Law of the Sea (adopted 10 December 1982) 1833 U.N.T.S. 397 art 17.

[42] Corfu Channel Case, (UK v. Albania) (Merits) [1949] ICJ Rep 4.

[43] Quincy Wright, ‘The Corfu Channel Case’ (1949) 43 American Journal of International Law.

[44] Douglas Guilfoyle, “The Rule of Law and Maritime Security: Understanding Lawfare in the South China Sea,” International Affairs 95(5) (2019): 999-1017. https://dx.doi.org/10.2139/ssrn.3378904/.

[45] Christine Elizabeth Macaraig & Adam James Fenton, “Analyzing the Causes and Effects of the South China Sea Dispute: Natural Resources and Freedom of Navigation,” The Journal of Territorial and Maritime Studies, vol. 8, no.2 (2021).

https://www.jstor.org/stable/48617340/.

[46] Ibid.

[47] Supra, note 7.

[48] Legislative Affairs Commission of the Standing Committee of the National People's Congress of the People's Republic of China, The Laws of the People's Republic of China (1983–1986).

[49] The Republic of the Philippines v. People’s Republic of China, PCA Case No. 2013-19.

[50] Ibid.

[51] Greg Torode, “Philippines South China Sea Legal Case Against China Gathers Pace,” Reuters, 27 September, 2013, https://www.reuters.com/article/us-china-philippines-idUSBRE98Q0BX20130927/.

[52] “China Says U.S. Trying to Influence Philippines’ Sea Case,” Reuters, 24 July, 2015, https://www.reuters.com/article/southchinasea-china-usa-idUSL3N1043AM20150724/.

[53] Israel Kanner & Assaf Orion, “Maritime Claims on the Rocks: The International Arbitration Ruling on the South China Sea,” Institute for National Security Studies, 2016. https://www.jstor.org/stable/resrep08530/.

[54] Ibid.

[55] “China Releases White Paper to Refute Tribunal Verdict on South China Sea,” The Hindu, 13 July, 2016, https://www.thehindu.com/news/international/world/China-releases-white-paper-to-refute-South-China-Sea-tribunal-verdict/article60526986.ece/.

[56] “Assessing Responses to the Arbitral Tribunal’s Ruling on the South China Sea,” Institute of Southeast Asian Studies, Perspective, no.43 (2016): 4-5. https://www.iseas.edu.sg/.  

[57] Pratnashree Basu, “Sovereignty vs. Sovereign Rights: De-escalating Tensions in the South China Sea,” Observer Research Foundation, 14 August 2023, https://www.orfonline.org/research/sovereignty-vs-sovereign-rights-de-escalating-tensions-in-the-south-china-sea.

[58] Kristin Huang, “Beijing Marks out Claims in South China Sea by Naming Geographical Features,” South China Morning Post, 20 April 2020, https://www.scmp.com/news/china/diplomacy/article/3080721/beijing-marks-out-claims-south-china-sea-naming-geographical.

[59] “China’s Sansha City Establishes Xisha, Nansha Districts in Major Administrative Move,” CGTN, 16 April 2020, https://news.cgtn.com/news/2020-04-18/China-s-Sansha-City-establishes-Xisha-Nansha-districts-PN5hyJkgFy/index.html.

[60] “China’s Xi tells Coast Guard to Enforce Maritime Law,” Reuters, 1 December 2023, https://www.reuters.com/world/china/chinas-xi-tells-coast-guard-enforce-maritime-law-2023-12-01/.

[61] Trinh Le, “The Vanguard Bank Standoff Shows that China Remains Undeterred,” The Interpreter, 16 August 2019, https://www.lowyinstitute.org/the-interpreter/vanguard-bank-standoff-shows-china-remains-undeterred.

[62] “China’s Maritime Disputes,” Council on Foreign Relations, https://www.cfr.org/timeline/chinas-maritime-disputes.

[63] Supra, note 57.

[64] Supra, note 62.

[65] Supra, note 63.

[66] Armando J. Heredia, “New Defense Agreement Between the Philippines and the U.S.: The Basics,” US Naval Institute, 29 April 2014, https://news.usni.org/2014/04/29/new-defense-agreement-philippines-u-s-basics.

A Nexus of Strategic, Economic, and Humanitarian Importance: Djibouti and Sudanese Crisis

pratham maheshwari

Djibouti is a country of 23,200 square kilometres located on the Horn of Africa with a population of slightly more than a million people. It is also a member of the Arab League, the African Union and La Francophonie. Moreover, because of such a vast and diverse military foothold of other nations, Djibouti is also known as the ‘most valuable military real estate’ in the world. Various superpowers view the nation as being of vital strategic importance, inspiring engagement of a military and economic nature. In fact, military rent accounts for approximately 10% of Djibouti’s GDP. The recent Sudanese crisis opened the door to an altogether novel and noble dimension of cooperation in the humanitarian arena, necessitating a reappraisal of Djibouti’s presence on the radar of Great Powers. 

Djibouti’s economic and commercial relevance is largely premised upon its critical location on the Bab al-Mandab Strait, one of the world’s busiest, at the entrance to the Red Sea. Goods transported from Asia to Europe through the Strait and the Suez Canal upstream must pass nearby the country. Roughly 10% of the world’s trade passes along Djibouti’s coast, within earshot of the coast. Great Powers such as the USA, France, Japan, and China have therefore been encouraged to establish military bases along Djibouti’s shores to compete for control of global supply chains.

Various other countries also utilise their military bases in Djibouti for fulfilling their own purposes. For instance, the USA has historically used its bases there as a means to conduct anti-terror operations. European states also perceive it as an imperative strategic base at the mouth of the sea. France’s military presence in Djibouti originates from the latter’s status as a French colony until 1977. After achieving independence, Djibouti signed agreements allowing France to maintain a military presence in the country in return for air protection and substantial rent payments. A nearby Italian naval base was built for anti-piracy and counter-terrorism purposes. The United Kingdom, Germany, and Spain rely on bases of their own for similar purposes. 

China had initially established its military base in 2017 as a means to conduct anti-piracy operations, but later, used it to assert its strategic influence over the region and include scarcely-resourced Djibouti in its ambitious Belt and Road Initiative alongside its more resource-rich neighbours. Japan counters the Chinese presence with one of its own, with a particular eye to protecting its strategic interests in major Sea Lanes of Communication. India too is also gradually increasing its presence in the region as Saudi Arabia prepares to establish a base of its own. Russia is the only Great Power to have had its bid for a base declined at the insistence of Western powers. 

Djibouti’s dependence on the rents received from the world’s great military powers cannot be overstated. Its otherwise fragile economy is now being buttressed by heavy infrastructural investments for which it has accumulated a tremendous amount of debt. China has leveraged its position as a willing financier to pursue projects such as additional port development. Despite its financial vulnerability, Djibouti’s financial and security safety blankets are too lucrative to abandon.

The recent Sudanese crisis has introduced a novel use for the plethora of military installments in Djibouti. The USA had positioned its military forces there as a contingency in case of emergency. Just last year, MH-47 Chinook helicopters carrying elite Navy SEAL commandos rescued Embassy staff and relocated them to the American base in Djibouti. Japan dispatched two transport aircraft and an aerial refuelling aircraft carrying personnel, vehicles, and other equipment to its base in Djibouti as part of its own evacuation endeavours. Chinese naval ships carrying evacuees to Saudi Arabia's port also made a stop at their Chinese base in Djibouti. France, Italy, and Spain also used Djibouti as part of their evacuation efforts. Djibouti’s relative political stability within the Horn of Africa and proximity to war-torn areas facilitates its role as a ‘safe-spot’ to where evacuees can be transported. 

Djibouti has further proven a reliable player to various nations during tense geopolitical crises. The U.S. deployed a special crisis response team of Marines to its base in 2013 when the South Sudan conflict intensified. In 2016, when Japan had to rescue its personnel and citizens from South Sudan, a C-130 transport plane and land transport equipment were deployed to Djibouti. The base proved an essential hub for transportation and logistics support to Japanese peacekeepers of UNMISS during 2012-2017 due to Djibouti’s proximity to South Sudan. Moreover, medical aid was also provided from the base when terrorists attacked a natural gas plant in Algeria in 2013 during which 10 Japanese citizens were killed. In 2019, the Chinese also evacuated hundreds of citizens from Yemen and transported them to Djibouti as Civil War flared. Djibouti has been used as a platform for humanitarian efforts in the past, although sporadically. The ongoing Sudanese Crisis, however, and the many evacuation efforts so far conducted using the country as a base of operations demonstrate that a perception of Djibouti as a humanitarian linchpin has proliferated. 

The juxtaposition of foreign military bases in Djibouti can enmesh the government in a geopolitical playground. Opposing narratives and accusations of the government’s favouritism to certain nations over others do exist, but Djibouti has nonetheless managed to play powers off of each other to ensure political volatility does not compromise its core economic, security, and political stability. However, certain criticisms of Djibouti’s government are more widely held than others. The country is characterised by extreme poverty and unemployment with citizens lacking basic services, a reflection of a staggering inequality common among rentier states. Moreover, the government is under persistent criticism for its rampant corruption, human rights violations, media suppression, and tepid protection of civil and political rights. Hence, the disparity between the external and internal environment of Djibouti, in terms of stability, largely endures but not for long.

The Sudanese Crisis has illuminated Djibouti's multifaceted significance on the global stage. Beyond its traditional roles as a strategic maritime hub and economic gateway, Djibouti has emerged as a crucial player in humanitarian operations. The country's relative political stability and strategic location have made it a preferred destination for the evacuation and relocation of personnel and refugees from neighbouring conflict zones. Furthermore, initiatives of nations, including the deployment of military forces for evacuation missions, underscore Djibouti's newfound role as a humanitarian linchpin in the region. As countries recognize the necessity of securing and maintaining military installations along Djibouti's shores, the country's strategic importance is further emphasised. In navigating complex geopolitical dynamics and addressing emergent challenges, Djibouti continues to serve as a beacon of stability and cooperation in a volatile region, solidifying its status as a cornerstone of regional stability and security.