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ASIAN (H)

The fate of academic freedom in Thailand

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Author: Tyrell Haberkorn, University of Wisconsin-Madison

On 11 December 2018 Thai Prime Minister General Prayuth Chan-ocha promulgated Head of the National Council for Peace and Order (NCPO) Order No. 22/2561, which ostensibly relaxed restrictions on civilian participation in politics ahead of the elections planned for February 2019. The order revoked nine NCPO announcements and orders out of a total of 535 issued between the May 2014 coup in which the NCPO seized power and September 2018.

Activists and university students gather to demand the first election in Thailand, since the military seized power in a 2014 coup, to be held on February 24 this year in Bangkok, Thailand January 8, 2019 (Photo: Reuters/Jorge Silva).

The problem with these announcements and orders, which are summarily issued by the NCPO or General Prayuth with authority granted by special articles in the 2014 and 2017 constitutions, is that they become immediately legal, constitutional and final upon being proclaimed. They will remain part of Thai law until being revoked, either en masse or individually, even once the NCPO exits power.

Among those revoked in December 2018 was Section 12 of Head of the NCPO Order No. 3/2558, put in place on 1 April 2015, which criminalised political assembly of five or more persons and stipulated a punishment of six months and/or a fine of 10,000 Thai baht (US$300). ‘Political assembly’ was left undefined. The hundreds arrested for and accused of violating the order have variously joined silent commemorations of the coup, marched in street protests and, in one case, held up a sign at an academic conference.

In August 2018 five individuals were indicted in the Chiang Mai district court for violation of Head of the NCPO Order No. 3/2558. The five were two academics (Chayan Vaddhanaphuti, Chaipong Samnieng), two students (Nontawat Machai, Teeramon Buangam) and an independent writer and translator (Pakavadi Veerapaspong). They were accused of being involved in holding up a sign that stated ‘An Academic Conference is Not a Military Barracks’ at the International Conference on Thai Studies (ICTS) in July 2017.

Similar to other academic seminars and conferences since the May 2014 coup, at ICTS there were plainclothes military and police intelligence photographing speakers and audience members, conspicuously taking notes on panels critical of the regime and otherwise interrupting the conference. In response to these actions as well as broader restrictions on freedom of thought at the conference, a group of 180 Thai and international academics signed a declaration in support of academic freedom, and the sign was posted.

A few days after the conference, a military officer made a complaint against the five individuals, who were ultimately indicted and summoned to hear the complaint against them. Outcry and a wave of support for them ensued, with statements from a group of international Thai Studies academics and from human rights and professional organisations including Scholars at Risk, Human Rights Watch, Amnesty International and the Association for Asian Studies.

Witness hearings began in early December 2018, with the prosecution and court impervious to the demands to drop the charges and end the case. They were set to continue on 12 December, one day after General Prayuth revoked Head of the NCPO Order No. 3/2558. Although the revocation noted that it would not affect any ongoing cases, Thai Lawyers for Human Rights pointed out that the Thai Criminal Procedure Code is clear that a defendant cannot be prosecuted and punished if there is no law in force that criminalises their actions. The court seems to have shared this concern — at the beginning of the 12 December session, hearings were suspended while the status of the prosecution following the new order was considered.

The court reconvened to issue a ruling on whether the prosecution can continue now that the actions of the defendants are no longer criminalised on the morning of 25 December. The court ruled to dismiss the charges and case altogether.

This ruling is significant for the five defendants as well as Thai society at large, particularly at this key pre-transition moment. The lives of the five individuals accused have been interrupted and their freedom threatened. Ending the case has ceased these threats.

The primary tool of the NCPO’s regime has been the use and abuse of law, including their own orders and announcements. The court’s ruling on whether the Criminal Procedure Code applies here indicates that a modicum of judicial independence still remains in Thailand. Ending the prosecution of individuals for whom the law criminalising their actions has been revoked is a key step towards rebuilding the rule of law.

But this ruling is only a tentative first step. What happens next matters a great deal. All other charges involving Section 12 of Head of the NCPO Order No. 3/2558 must also be dropped. The remaining over 500 NCPO orders and announcements summarily prosecuted must be revoked, and the spurious charges made against civilians under them dropped. These would be concrete steps towards creating space for people’s participation in politics ahead of the upcoming elections, which was, after all, the junta’s stated reason for issuing Head of the NCPO Order No. 22/2561.

Eventually, the prosecutorial lens needs to be turned towards the dictatorship itself. But this, like rebuilding the rule of law, is likely to be a long-term project in Thailand.

Tyrell Haberkorn is Associate Professor of Southeast Asian Studies in the Department of Asian Languages and Cultures at the University of Wisconsin-Madison.

This article is part of an EAF special feature series on 2018 in review and the year ahead.



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ASIAN (H)

The costs of containing China

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Author: Hugh White, ANU

Washington’s policymakers at last understand that China is a serious strategic rival. For the first time since the Soviet collapse, they recognise that a major country is trying to expand its power and influence at the expense of US global leadership.

US President Donald Trump and China's President Xi Jinping arrive at a state dinner at the Great Hall of the People in Beijing, China, 9 November 2017 (Photo: Reuters/Thomas Peter).

Now they must decide what, if anything, to do about it. Vice President Mike Pence spoke for many in October 2018 when he struck a defiant tone, committing the United States to resist China’s ambitions and contain its challenge. Inevitably people started to talk of a new Cold War with China. But containing China is not going to be easy, and no one has yet explained how this new Cold War is going to be prosecuted, what it will cost and why the United States must do it.

Optimists in Washington probably think that President Donald Trump’s trade war with China will blunt Beijing’s strategic challenge by undermining its economic and technological progress, and perhaps disrupt its politics. It won’t be that easy. China faces a rocky economic path but its huge economy will not vanish. Xi Jinping may well face rising opposition, but that can’t be relied upon to solve the United States’ problem either.

The only prudent assessments are that China will remain by far the most economically formidable adversary the United States has ever faced, that its determination to reassert its great power status goes well beyond Xi, and that nothing will harden China’s resolve more than a conviction that the United States is trying to stop China’s rise.

Nor will the United States find it easy to sign up allies for a new Cold War against China. No one wants to live under China’s shadow, but no one wants to risk the economic costs and strategic risks of a rupture with Beijing — especially when they are unsure of the United States’ real intentions and resolve.

So the new Cold War with China will play out primarily as a bilateral military contest. The two sides will not necessarily go to war, but each side’s capacity to convince the other that they are willing to go to war will determine which of them prevails. We have already seen some classic brinkmanship in the South China Sea. But the real test may well come over Taiwan, and the escalating rhetoric of 2018 makes it more likely that this test will come sooner rather than later.

Most Americans take it for granted that the United States can and would go to war with China if it attacked Taiwan. But they may not realise what that would mean and how it might end. As China’s air and naval forces have grown, the United States has lost the capacity to secure a swift and sure victory in a conventional war with China in the Western Pacific.

This means that, to a much greater degree than is commonly realised, US confidence in winning a war with China depends on nuclear forces. The United States would rely on the threat of using nuclear weapons first to make up for its inability to win a conventional war on its rival’s doorstep. The hope is that this threat would be enough to make China back off.

But this threat is only credible if it is clear that China would not retaliate by launching nuclear attacks on the United States, or if it is clear that the United States is willing to accept such attacks in order to prevail. At present US policy assumes that China would not retaliate. The reasoning is that Beijing would be deterred from retaliatory attacks on US soil by fear of a much more devastating US counter-retaliation.

Perhaps this is right, but it is far from certain. How sure could a US president be that China would not retaliate, even if that did mean a massive US counterstrike? And how far might that uncertainty embolden China to defy US threats to use nuclear weapons first?

This is why Washington’s threat to use nuclear weapons first is only credible to the extent that the United States is clearly willing to accept a nuclear attack on its own soil. This was how things worked in the old Cold War. But is containing China as important to the United States as containing the Soviet Union was?

The Americans saw the Soviets as posing an existential threat because its universalist ideology and apparent capacity to dominate the whole of Eurasia made it seem like a direct threat to America itself. It only makes sense for the United States to accept the kinds of risks it accepted in the old Cold War if it is likely that China might pose a similar threat to the United States in the future. No one has yet argued convincingly that it does.

What China does unquestionably threaten is America’s place as the dominant power in Asia and its claims to leadership of the global order. But how important are these things to Americans today? They don’t seem to matter much to Donald Trump and his supporters, and perhaps not to many Democrats either. Can they be convinced that the costs and risks of opposing China in Asia are worth it?.

So those who want Washington to take Beijing on have a big job in the year ahead to explain why containing China matters as much to US security as containing the Soviet Union did. Without this explanation the United States cannot formulate a credible strategy against China. And without a credible strategy, Pence’s bold words will soon look like empty braggadocio and US leadership in Asia will slide swiftly into history.

No one outside China should want that to happen, but we’d be foolish not to see how likely it is nonetheless.

Hugh White is Emeritus Professor in the Strategic and Defence Studies Centre, The Australian National University.

This article is part of an EAF special feature series on 2018 in review and the year ahead.



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HISPANIC (H

Medication or Hazardous Waste? EPA Creates Significant New Requirements for Managing Unused Pharmaceuticals

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On December 11, 2018, U.S. EPA Acting Administrator Andrew Wheeler signed a new hazardous waste pharmaceutical rule. The final rule retains a proposed requirement, opposed by industry, that prescription pharmaceuticals sent from health care facilities to reverse distributors first be considered “disposed of,” regulated as solid waste and evaluated for hazardous classification at the health care facility. This rule will impose significant new obligations on health care providers, including pharmacies and long-term care providers, as well as forward and reverse distributors of pharmaceuticals.

Decades of Policy

In the 1980s and 1990s, U.S. EPA took the position in policy memoranda that pharmaceuticals in the reverse distribution chain were “not considered wastes until a determination has been made to discard them.” That approach worked well for health care providers, who frequently relied on reverse distributors to determine whether their unused prescription and over-the-counter medications could be credited/reused/reclaimed or should be discarded. Under the George W. Bush Administration, U.S. EPA proposed to classify returned pharmaceuticals as “universal waste” entitled to relaxed management standards, but never finalized that rulemaking after concerns were raised regarding the potential diversion of narcotics and other medications regulated by the Drug Enforcement Agency (DEA). The Obama Administration proposed the current rule in September 2015, offering an entirely new set of management standards for unused pharmaceuticals. In the subsequent three years, a number of industry participants met with U.S. EPA as well as the Office of Management and Budget regarding the scope of the rule.

The New Approach

In the December 11th publication of the final rule, U.S. EPA expressed its concern that many industry participants have come to disregard the intent behind the agency’s prior guidance, and erroneously believed that it was a blanket statement that no pharmaceuticals going through reverse distribution were considered solid waste. As a result, the final rule treats prescription pharmaceuticals—but not non-prescription pharmaceuticals—as having been “discarded” by a pharmacy, hospital, or other health care provider when it decides to ship the potentially creditable material to a reverse distributor. Upon being “discarded,” those pharmaceuticals become solid waste, triggering management obligations under the Resource Conservation and Restoration Act (RCRA) for pharmaceuticals that are characteristically toxic, or that meet the definition of certain “listed” wastes, such as P and U listed acutely hazardous substances. In order to accommodate the unique market arrangements for pharmaceuticals, EPA’s final rule establishes an industry-specific set of requirements for prescription pharmaceuticals under RCRA.  With regard to non-prescription pharmaceuticals, EPA took a different approach and will continue to allow health care providers to ship potentially reusable and reclaimable over-the-counter drugs and dietary supplements as recyclable materials outside the RCRA waste regime to reverse distributors, where the actual decision to reuse/reclaim or discard the material will be made.

The pharmaceutical waste management standards found in the new 40 C.F.R. Part 266, Subpart P establish requirements for health care facilities (a term broadly defined to include hospitals, clinics, pharmacies, and long-term care facilities) as well as logistics providers known as “reverse distributors.” The final rule requires health care facilities that dispose of prescription pharmaceuticals to register with U.S. EPA, and to separate listed or characteristically hazardous (toxic, flammable, reactive, or corrosive) pharmaceuticals from unlisted, non-hazardous pharmaceuticals. Health care facilities will need to adopt training programs for staff to comply with the rule, and will need to dispose of hazardous pharmaceuticals within one year of their being determined to be a waste. The rule also creates an exemption from certain existing requirements for containers of medications that would be considered acutely hazardous when made a waste, such as Coumadin, so that facilities no longer have to tally the weight of Coumadin packaging and consider it acutely hazardous waste.

Notable changes from the proposal applicable to reverse distributors include:

  • Authorization to accumulate hazardous waste pharmaceuticals for up to 180 days, rather than 90 days as proposed
  • An exemption for managing materials subject to recall or a litigation hold
  • Authorization to complete the initial sorting process within 30 days, rather than 21 days as proposed

The final rule includes four other significant elements. It bans the practice of flushing hazardous waste medications down the toilet (sewering). The rule exempts Food and Drug Administration-approved nicotine replacement therapies, such as patches and gum, from hazardous waste disposal requirements. The rule also exempts from regulation medications collected during drug take-back programs and events, placing them within the Congressionally-created household hazardous waste exemption. Finally, the rule eliminates the dual regulation of hazardous waste pharmaceuticals under RCRA if they are also regulated by the DEA as controlled substances.

Why This Matters to the Health Care Industry

The final rule fundamentally changes U.S. EPA’s long-held position on the point at which a pharmaceutical product is considered a solid waste under RCRA. That change will create significant regulatory uncertainty, and potential liability, for entities in the pharmaceutical distribution chain that suddenly find themselves evaluating compliance with the new rule. While Acting Administrator Wheeler signed the rule on December 11, 2018, the rule will not become effective until 6 months after it is published in the Federal Register. The rule may also be subject to petitions for reconsideration, or to challenge in the Court of Appeals for the D.C. Circuit.



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ASIAN (H)

For progress on North Korea, Seoul must lead in its alliance with Washington

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Author: Stephen Costello, Asia East

South Korea acted more like a middle power last year than ever before. The level, breadth and delicacy of its diplomatic efforts in pursuing openings for peace, denuclearisation and economic development on the Korean Peninsula would have exhausted many other countries. The bar has now been raised for what to expect from Seoul in 2019.

Pictures showing South Korean President Moon Jae-in and North Korean leader Kim Jong Un during their inter-Korean summit are exhibited in Seoul, South Korea, 30 November 2018 (Photo: Reuters/Kim Jeong-min).

Inter-Korean rapprochement has always been the essential pre-condition for Seoul’s realisation of its middle power potential. During the presidencies of Kim Dae-jung and Roh Moo-hyun from 1998 to 2008, sustained South–North efforts began to bear fruit. They did so because Kim and Roh insisted that domestic democratic advancement was required to both confront and engage North Korea.

The exercise of South Korea’s middle power status was delayed by the decade that followed, when corruption limited the administration’s domestic legitimacy and unrealistic strategies toward the North were pursued. From 2008 to 2017 familiar illiberal elements in South Korea delayed the modernisation of economic and diplomatic structures, and resisted the strategic reset that cooperative North–South peace-building would produce.

Moon Jae-in’s election in May 2017 returned South Korea to its earlier trajectory, aiming for domestic accountability and inter-Korean rapprochement. In a lucky coincidence, North Korea’s Kim Jong-un was preparing to shift direction in an attempt to escape economic isolation and barter his nuclear programs for peace with the United States.

As a result, diplomatic events throughout 2018 in Northeast Asia and the United States have altered the status quo in ways that are probably irreversible, even if additional agreements are needed.

The key difference between then and now is the position of the United States. All through the 1990s the United States was carefully exploring ways to engage Pyongyang on the nuclear issue while maintaining deterrence. This continued through the 1994 US–DPRK Agreed Framework and was strengthened by the election of the engagement-minded Kim Dae-jung.

Today, the North and South Koreans are again ready to move ahead. But the United States, despite President Donald Trump’s unconventional theatrics and willingness to abandon military bluffs, is not capable of playing a leading role.

The Trump approach has certainly contributed important elements to the Peninsular thaw throughout 2018. US rejection of 15 years of counterproductive White House policy, abandonment of major military exercises and a summit meeting with Kim served to remove the United States as an obstacle to diplomatic progress.

But these actions appear to have exhausted the Trump administration’s positive contributions. Elements of the previous ‘strategic patience’ thinking are reasserting themselves in Washington. Trump hired John Bolton, enemy of previous North Korea and Iran nuclear deals, as his national security advisor. Trump himself shows no sign of grasping how the United States could complete its pivot to facilitating, rather than obstructing, denuclearisation.

This is the situation facing the Moon government as it looks to 2019 and beyond. The myth that the US–South Korea alliance is fragile, and that Seoul must give in to shifting demands from Washington, still haunts the Blue House. So it may be understandable that the United States was dragged into the centre of rapidly developing North–South relations in 2017 and 2018, even though it is more confused and less able to make policy than at any time in memory. With North–US diplomacy on hold, Seoul alone has the flexibility to drive the process toward a durable deal. But how?

Verifiable capping and rollback of North Korea’s nuclear and missile capabilities will now require major relief from UN sanctions. This has always been the case — denuclearisation is only possible in a changed diplomatic relationship with the United States. But if Kim Jong-un is serious about trading nuclear and missile capabilities for economic and diplomatic openings, he is discovering that the United States is perhaps not. Some in South Korea are coming to the same conclusion.

The outlines of a deal are little changed from the 1990s, and good suggestions have been offered. Former South Korean unification minister Lee Jong-seok points out that, fair or not, the current US administration needs North Korea to put out its offer first. That offer should consist of a large and serious act of denuclearisation. Former special advisor for nonproliferation at the US State Department Robert Einhorn suggests that an appropriate act would be for North Korea to identify all sites where fissile materials are produced, freeze them and then open them for inspection. If Kim Jong-un were to make such an offer, the subsequent drive for significant UN sanctions relief should be successful despite expected US resistance.

Seoul may now have to do what it declined to do in 2017 and 2018: put forward a deal that has benefits for both sides, demand help from neighbours and allies, and use the United Nations to help secure progress on the linked nuclear and economic development deals. Many specialists believe such a deal is entirely possible.

Nineteen months of hard and bold work has paid off in multiple ways. But the complexity and requirements of navigating these issues demand a decision from South Korea to lead in its alliance with the United States, using the tools available to a middle power.

The Moon administration cannot expect its luck to continue. Instead, it will have to make its own luck.

Stephen Costello is an independent analyst and consultant, and the producer of Asia East. He was formerly director of the Korea Program at the Atlantic Council and director of the Kim Dae Jung Peace Foundation. 

This article is part of an EAF special feature series on 2018 in review and the year ahead.



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ASIAN (H)

Signs of transition and renewal in Singapore

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Authors: Chang Yee Kwan, Xiamen University Malaysia and Mukul G Asher, Singapore

Singapore reported a credible economic performance in 2018 amid an increasingly uncertain global environment, exemplified by the US–China trade war. Economic growth for the year is expected to lie between 3–3.5 per cent and overall inflation at 0.5 per cent. These compare well with International Monetary Fund forecasts of 2.4 per cent and 2 per cent respectively for advanced economies. Official surveys report an increase in median income with lower income deciles experiencing greater gains, although the employment rate of Singaporeans and Permanent Residents — the resident labour force  declined marginally from 80.7 per cent to 80.3 per cent over the year.

Singapore's Prime Minister Lee Hsien Loong speaks during the opening ceremony of the 33rd ASEAN Summit in Singapore, 13 November 2018 (Photo: Reuters/Edgar Su).

Singapore maintained a regular international presence throughout the year. The country hosted the first-ever meeting between the leaders of the United States and North Korea in June and convened and officiated the 33rd ASEAN and related summits as the 2018 ASEAN chair in November. This bodes well for the location-based business strategy that continues to be an integral part of Singapore’s economic planning and management.

Domestically, signs suggest the start of a gradual transition and renewal of Singapore’s economic structure in line with the Committee on the Future Economy report released in 2017. Adherence to the report’s recommendations can be seen in the emphasis on education and training, infrastructure and healthcare — sectors that policymakers believe will further Singapore’s long-term growth potential — in the annual government budget as well as government support for the use of technology in financial services FinTech.

Greater expenditure on health also suggests that policymakers acknowledge the need for the public sector to play a larger and deeper role in managing the needs of Singapore’s ageing population. The expected increase in public spending will be financed by an increase in the Goods and Services Tax (GST) from 7 per cent to 9 per cent between 2021 and 2025.

Despite stated urgency on the need to manage inequality and old-age income security, public policy focus remains on job creation and skills upgrading. This is notwithstanding that income inequality is likely higher than may be inferred as Singapore’s Gini coefficient is calculated using only labour income of the employed.

Policymakers remain averse to calls for a minimum wage or higher income supplements to reduce inequality because of hypothesised negative effects to employment and economic growth. There continues to be a strong preference for selective use of wage and income supplements to low-income households to be more effective instruments of redistribution. But a recent study revealed that accumulation from employment income alone may be insufficient to ensure old-age income security due to rising longevity and underemployment, both observed in Singapore.

Inequality and old-age income security concerns are amplified by the continued lack of social risk pooling arrangements. This is seen from an enduring emphasis on individual savings from labour income in retirement-financing arrangements, on the use of actuarial valuations in the basic catastrophic national health insurance and disability insurance premiums, and on pay-outs from the compulsory annuity scheme. The individual bears a disproportionate amount of risk when some of it could be better managed by society. The case for social risk pooling is more compelling for women in particular as they typically experience lower incomes, shorter working lifespans and greater longevity, all of which raise inequality and insecurity.

Consequently, a universal non-contributory pension scheme is necessary to limit the extent for old-age poverty. Singapore stands alone among developed economies in not having such a budget-financed social pension despite its record of recurring budget surpluses. The importance of implementing such a scheme in Singapore is greater now with the reported complexities in monetising public housing values for retirement financing, but informed discussions on this (and other issues) remain constrained by data limitations — well-illustrated by the role of existing budgetary reporting practicesin facilitating fiscal policy debates.

Alongside early signs indicating the start of economic restructuring, the ruling party announced a leadership renewal with changes to its core management team in November 2018. This includes a number of younger members who will, or are anticipated to, take on key leadership and decision-making roles in the coming years.

Singapore’s policymakers will need to manage more vocal domestic concerns about inequality, old-age income security and social stratification. The latter will be accentuated by cost-of-living concerns from higher public utility charges and the increase in public transport fares.

Difficulty in doing so is increased by the population’s changing perspectives and demands of governance and public sector accountability. Understanding and adapting to this takes on greater significance as the conventional drivers of growth and social mobility, such as education, begin to seem ineffective and conducive to social stratification. As ageing and the pace of technological change across the economy accelerates, the economic gains from job creation and retraining, especially for older workers, will become increasingly difficult to realise.

In the course of change and renewal, more comprehensive measures and safeguards will be needed to mitigate the adverse effects that will inevitably emerge over the adjustment process. Increasingly, this will require Singapore’s policymakers to diverge from long-held convictions and positions of what is appropriate to devise more nuanced policy responses that successfully navigate the challenges of the coming year.

Chang Yee Kwan is Assistant Professor in Economics at Xiamen University Malaysia and Non-Resident Fellow at the Center for Southeast Asian Studies, National Chengchi University.

Mukul G Asher is an independent consultant in public financial management and social security reforms.

This article is part of an EAF special feature series on 2018 in review and the year ahead.



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ASIAN (H)

Duterte’s pivot to China less than meets the eye

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Author: Richard Javad Heydarian, Manila

Chinese President Xi Jinping’s state visit to the Philippines in November 2018 was the first by a top Chinese leader in more than a decade, marking the culmination of an ongoing rapprochement between the two countries.

Despite high expectations, Xi’s visit failed to achieve any major breakthroughs. There was neither a firm resource-sharing agreement for the South China Sea nor a major announcement on the backlog of big-ticket Chinese infrastructure investments.

Visiting Chinese President Xi Jinping waves to the media as he walks with Philippine President Rodrigo Duterte before their bilateral meeting at the Malacanang presidential palace in Manila, Philippines, 20 November 2018 (Photo: Reuters/Erik De Castro).

With little to show for his China-courting gambit, Philippine President Rodrigo Duterte has come under growing pressure to re-examine his foreign policy calculus — especially ahead of crucial midterm elections in 2019 that will serve as a referendum on his populist presidency.

In a region growing sceptical of Beijing’s overtures, the Philippines has emerged as an outlier — an island of rare optimism over its burgeoning bilateral relations with China.

Since coming to power in 2016, Duterte has effectively toed the Chinese line on the South China Sea disputes. He refuses to raise the Philippines’ landmark South China Sea arbitration ruling in talks with Beijing, has described the situation in the disputed waters as generally ‘stable’ and ASEAN–China relations as ‘excellent’, and rarely criticises Beijing’s relentless militarisation of claimed islands.

Operationally, Duterte has blocked US warships en route for freedom of navigation operations in the South China Sea from using Philippine ports. He has also rejected US requests to preposition equipment and develop critical bases close to the disputed waters under the Enhanced Defense Cooperation Agreement.

During Xi’s visit, both sides agreed to elevate their relations to a strategic partnership. Xi announced an agreement to ‘chart a clear course for China–Philippines relations’ and made it clear that China ‘will continue to do its modest best to help and support the Philippines’.

Yet of the 29 deals signed between the two countries, there was little indication that China will expedite its multi-billion dollar pledges of infrastructure investment in the Philippines. Almost all the signed deals were vague, non-binding agreements on pre-identified projects. Among the 10 proposed big-ticket Chinese infrastructure projects, so far only one (the Chico River Pump Irrigation Project, worth around US$60 million) has passed the preliminary stages of implementation.

Frustration seems to be building, with outspoken Philippine Budget Secretary Benjamin Diokno openly lamenting the need for Xi to ‘put pressure on the speed of implementation of all these projects’.

Similarly, months after Duterte suggested ‘co-ownership’ of resources in disputed areas of the South China Sea, the two sides have failed to secure even the framework for an agreement on joint exploration of potential energy resources. They have only signed a memorandum of understanding on oil and gas development, with no specifications on where the potential projects would be.

The deadlock in negotiations is likely due to mounting domestic opposition, including from within the Philippine government bureaucracy, to any controversial and potentially illegal resource-sharing agreement with China. No less than Foreign Secretary Teddy Locsin proudly announced his pushback against ‘forces [within the government] saying we should come to an understanding’ with China.

The Armed Forces of the Philippines, which remains heavily sceptical about China’s intentions, reportedly also rejected a Chinese proposal for a Maritime and Air Liaison Mechanism in areas of overlapping claims in the South China Sea. For the military, any such agreement would indirectly legitimise China’s claims in the Philippine-claimed Spratly chain of islands.

Shortly after Xi’s departure, key statesmen aired their explicit opposition to any major compromise with China. Supreme Court Justice Antonio Carpio, the acting chief justice at the time, warned that any joint exploration or joint development deal with China in areas of overlapping claims would be unconstitutional. He went so far as to call China’s creeping maritime expansion the ‘gravest external threat’ to the Philippines since World War II.

Prominent politicians are also being more openly critical of closer ties with China ahead of the midterm elections. The latest surveys suggest that the vast majority of Filipinos are sceptical of China and would prefer that Duterte take a tougher stance in the South China Sea disputes.

The Senate is conducting several investigations into the reported influx of illegal Chinese workers, the proliferation of Chinese-run online casinos and the potential entry of a state-run Chinese enterprise into the Philippines’ telecommunications market. Prominent legislators such as Senator Grace Poe have openly raised national security concerns over a deluge of Chinese technology, capital and workers.

Far from falling into China’s orbit of influence, the Philippines remains in the midst of an intense internal debate over the future of its bilateral relations with Beijing. Crucially, there is deep opposition to any major compromise with Beijing in the South China Sea as well as uncertainty about large-scale Chinese investments.

Instead of solidifying bilateral ties, Xi’s visit seems to have only exposed internal fault lines and widespread scepticism in the Philippines over Duterte’s strategic flirtation with Beijing.

Richard Javad Heydarian is a Manila-based academic and author of The Rise of Duterte: A Populist Revolt Against Elite Democracy.

This article is part of an EAF special feature series on 2018 in review and the year ahead.

A version of this article originally appeared here on Asia Maritime Transparency Initiative.



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ASIAN (H)

India needs to keep its friends close and its rivals closer

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Author: Deepa Ollapally, George Washington University

Despite Prime Minister Narendra Modi’s ‘neighbourhood first’ policy, India has witnessed some serious and surprising diplomatic setbacks in its near region in the recent past. That this has happened with friends and rivals alike should be a cause for concern for New Delhi. It may be time for India to try a different approach to regional diplomacy and re-learn the old adage ‘keep your friends close and your enemies closer’.

Chinese President Xi Jinping shakes hands with Indian Prime Minister Narendra Modi during the G20 Summit in Hangzhou, China, 4 September 2016 (Photo: Reuters/Damir Sagolj).

Modi’s neighbourhood initiative focusses on engaging and cultivating India’s smaller neighbours. But it is worth remembering that China is a neighbour too. The two share a 4056 kilometre border — some of it hotly contested as the 2017 military standoff at Doklam demonstrated. And right now, China’s growing influence in South Asia is proving to be the biggest obstacle for New Delhi in ensuring that the region’s historical ‘India first’ orientation is not fundamentally altered.

Relations with India’s traditionally closest neighbour, landlocked and India-dependent Nepal, have drastically plummeted. The tiny but strategically located Maldives almost slipped away from India’s orbit for good in 2018. Sri Lanka’s India-tilted political leadership has come undone and is spinning out of control. Bangladesh is the only bright spot among friends.

As for adversaries, India’s relations with Pakistan are stuck in a tense stalemate with little prospects for improvement under Prime Minister Imran Khan’s new military-backed regime.  And India–China relations hit a new low in 2017, with the Himalayan face-off only deepening distrust between the two rivals.

A common and even causal factor in India’s declining fortunes with its smaller neighbours is the unprecedented rise of Chinese influence in these countries. That China’s involvement is concentrated in building hard infrastructure, such as dual-use ports, with loans and investments that dwarf other states’ economic impact, paves the way for potentially overweening Chinese influence.

Sri Lanka is an object lesson. When the country found itself unable to pay back the huge Chinese loans that it had recklessly taken under Mahinda Rajapaksa’s pro-China regime, Colombo was forced to sign a 99-year lease in 2017 for the strategic Hambantota port in a debt-for-equity agreement that recalled colonial practices.

Even the more balanced government that came after Rajapaksa is going ahead with Colombo Port City — an entirely new metropolis that will be created from reclaimed land, and built and financed by China to the tune of US$15 billion. In 2015, Sri Lankan Prime Minister Ranil Wickremesinghe had suspended the project citing damage to the coastline. This angered the investor, China Communications Construction, which stood to suffer substantial losses. By 2016, the project was back on track.

The case of the Maldives is even more striking. Until 2011, China did not even have an embassy in the capital Male. By that time India’s sway over the Maldives was near complete, with New Delhi militarily intervening to thwart a coup against the ruling government in Male in 1988. In 2014, India was the first nation to respond when nearly 100,000 Maldivians lost access to safe drinking water and the government declared a state of emergency.

Fast forward to 2018 and the Maldives–India picture looks almost unrecognisable. China is now clearly the dominant player in the Maldives, with Beijing’s three largest investment projects in the country amounting to more than 40 per cent of the Maldives’ GDP. Debt quagmire along the lines of Sri Lanka seems inevitable. Although the political pendulum swung slightly back in New Delhi’s favour with a new government in September 2018, India cannot take anything for granted.

Given these types of developments, much of the Indian strategic community and several media outlets appear to have concluded that rivalry with China in the neighbourhood is a foregone conclusion, with little room for cooperation or real engagement. But an unexpected glimmer of cooperation between India and China in October 2018 suggests that the two countries may be looking to reform their increasingly adversarial relations in the region.

In an unprecedented move, the two countries jointly trained 10 Afghan diplomats at the Indian Foreign Services Institute in New Delhi as part of a new Afghan initiative that Chinese leader Xi Jinping and Modi hatched at Wuhan in April 2018. This in turn came out of a novel ‘two plus one’ model of economic cooperation between India, China and a third country that China had floated. India and China have long been on opposing sides in Afghanistan, with China’s partner Pakistan openly resisting India’s presence there, making the new effort even more remarkable.

Whether this is a harbinger of better relations between the two Asian giants is too early to say, but Indian leaders should seriously entertain the ‘two plus one’ idea as one more way of shoring up India’s presence in its near region.

This does not mean that India should not improve its border infrastructure or raise its maritime domain awareness in the Indian Ocean. After all, the adage of keeping enemies closer emanates from hard-headed realism and, in the process, it just might prove to be a boon for India’s own faltering ‘neighbourhood first’ policy.

Deepa Ollapally is Research Professor of International Affairs and Director of the Rising Powers Initiative in the Elliott School of International Affairs, George Washington University.

 

 



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The Meng case: extraterritorial kidnapping or rule of law?

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Author: Ivy Lee, California State University

Meng Wanzhou was apprehended by local police as she stepped off a plane in Vancouver en route to Mexico in December 2018. Around the same time, presidents Xi Jinping and Donald Trump were sitting down to dinner in Buenos Aires to hammer out a trade war truce.

A man holds a sign outside of the BC Supreme Court bail hearing of Huawei CFO Meng Wanzhou, who is being held on an extradition warrant in Vancouver, British Columbia, Canada, 10 December 2018 (Photo: Reuters/David Ryder).

Meng is the chief financial officer of the private Chinese company Huawei and the daughter of its founder, Ren Zhengfei. After investing extensively in research and development, Huawei has become one of the leading telecommunications providers in the world and is reputedly leading the race in the transition from 4G to 5G. The company is also an essential component of Made in China 2025, China’s plan to upgrade its industries in sectors currently dominated by the United States and other Western countries.

The Made in China 2025 initiative aims to make Chinese industries more efficient, integrated and less reliant on foreign suppliers by increasing Chinese domestic content of core components and materials to 70 per cent by 2025. Although this plan is inspired by Germany’s Industry 4.0, its unveiling in 2015 continues to elicit a great deal of unease, especially in the United States where it is seen as a direct challenge to US primacy in these sectors. As a mainstay of Made in China 2025, Huawei seems to have become a recipient of US efforts to stymie the plan.

When news of Meng’s arrest broke, Chinese citizens were furious at what they see as a move by the United States and its Western allies to contain China’s rise. China has since detained two Canadians, presumably in retaliation for Meng’s arrest.

Canada is reporting that it acted on an extradition request from US judicial authorities who allege that Meng, acting as a top official of Huawei, contravened US sanctions against Iran. In honouring the extradition treaty between the two countries, Canadian Prime Minister Justin Trudeau claims Canada was simply following the ‘rule of law’.

But the intent of the US extradition request is highly questionable. Without providing evidence to substantiate the allegations, the United States not only banned governmental use of Huawei products but reached out to warn its allies of security risks posed by the company’s close ties to the Chinese government. This is a considerable departure from past US responses to banks, both in the United States and abroad, that violated the Iran ban and were merely asked to pay fines. None of the individual officers involved in the violations were arrested, charged or held accountable.

The legality of Meng’s ‘apprehension’ is also suspect. The Iran sanctions Meng allegedly violated are US secondary sanctions, which penalise a third-party person, entity or country that does business with Iran against which primary sanctions are levied. They run counter to a canon of customary international law that holds that state laws should be applied with the presumption against extraterritoriality, meaning their legal reach should extend only to acts occurring within a territory over which a state has jurisdiction.

Amid burgeoning transnational entities and activities, contemporary US legal opinions are more expansive in their interpretations of this aspect of customary international law. Some hold the ‘presumption against’ to be obsolete and believe it should be abandoned. Others are less extreme but claim that interpretations of territoriality should account for not only where an illegal act occurs but also whether that act has an impact on the United States. If the act is committed outside of the United States but its impact is felt inside, the presumption against extraterritoriality may not apply.

The rationale for the presumption against extraterritoriality in customary international law is clear: without it, the concept of sovereignty becomes meaningless and harmony among the community of nations a fanciful goal. It seems the United States has not taken into consideration these and other factors, such as conflict with other nations’ laws and the due process rights of non-US defendants. Surely the United States cannot maintain its position when neither the United Nations, the European Union nor any other state have similar secondary sanctions.

The United States could not have reached across national boundaries to arrest Meng without a willing partner in enforcement. While Canada claimed it had no choice, it does have discretionary powers. According to the Canadian Department of Justice, ‘[e]xtradition treaties do not themselves create an obligation or a power to arrest in Canada’ and ‘merely define the basis on which provisional arrest may be requested’.

Canadian law requires the individual facing extradition to be charged with an offence that is not only criminal in the United States but also under Canadian law. Since Canada has no law proscribing third-party dealings with Iran, the Canadian prosecution charged Meng with misrepresenting to banks the relationship between Huawei and Skycom, a company accused of selling US equipment to Iran. Meng maintained that they were separate entities when supposedly Skycom was an unofficial subsidiary of Huawei. Her behaviour allegedly constitutes bank fraud under section 380 of Canada’s criminal code.

Canada must also ensure that the relevant factors for seeking a provisional arrest are justified before honouring the US request. But has Canada done its due diligence? More importantly, would Canada have arrested and prosecuted Meng for bank fraud in Canada without the US request? In other words, has Canada exercised prosecutorial discretion or simply participated in an extraterritorial kidnapping initiated by the United States?

Sadly, if the United States is successful in imposing these secondary sanctions, it may demonstrate that might makes right. And the Meng case may come to signify how being a superpower makes it easier for the United States to contravene the rule of law.

Ivy Lee is Professor of Sociology Emeritus at California State University, Sacramento.



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GAIKINDO INDONESIA INTERNATIONAL COMMERCIAL VEHICLE EXPO

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Dates: 
Mar 03, 2019Mar 08, 2019

Venue: 
Jakarta Convention Center

Location address: 
P.O. Box 4916, Jakarta 10049, Indonesia

Country: 
Indonesia

Organizer: 
Seven Event

Show URL: 
commercialautoexpo.com

Number of exhibitors: 
45

Major exhibits: 

Trucks, Buses & Coaches, Pickups, Vans & Minivans, Special Vehicle, Carroserie, Tires & Wheels, Lubricant
Financial & Insurance Services
Accessories
Spare Parts & Components
Support and Service System/Information Technology, Consultants and Service Providers, International Auto Part Supliers, Connected Truck Technology

Show banner: 

Hosted by the largest automotive association in indonesia, Gabungan Industri Kendaraan Bermotor Indonesia (GAIKINDO), GIICOMVEC is ready to present a business-to-business exhibition for commercial vehicles, urban transportation, carrosseries, and other supporting industries as the right platform for producers and vehicle distributors to meet the right buyers.

Show Contact
Title: 

Project Coordinator

Name: 
Desy Afriyani

Telephone: 

(+6221) 2918 2970

Fax number: 

(+6221) 2918 2960

E-mail: 

info@commercialautoexpo.com

Mailing address: 

Metropolitan Tower 18th Floor , Jl TB Simatupang, Cilandak Kav. 14 Jakarta Selatan 12430, Indonesia

City / State / Province: 
Jakarta

Country: 
Indonesia



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Seoul dips its toe in the Indo-Pacific

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Author: Ramon Pacheco Pardo, Kings College London

Does South Korea have an Indo-Pacific strategy of its own? Seoul is grappling with this question as the concept, first popularised by Indian strategist Gurpreet S Khurana over a decade ago, gains in prominence. Even though South Korea does not have an explicit Indo-Pacific policy, different elements of its foreign policy are coming together to shape a South Korean approach to the region.

Singapore's Prime Minister Lee Hsien Loong shakes hands with South Korea's President Moon Jae-in at the Istana in Singapore, 12 July 2018 (Photo: Reuters/Ministry of Communications and Information of Singapore).

Seoul’s recent interest in the Indo-Pacific concept reflects long-standing foreign policy priorities. Dating back to the 1990s, but more clearly and consistently since the Lee Myung-bak years from 2008–13, South Korea has sought to become a middle power with foreign policy interests beyond Northeast Asia. President Lee sought to make Seoul a more prominent player and balancer in East Asia. Afterwards, president Park Geun-hye launched the Eurasia Initiative to involve South Korea in Eurasian connectivity projects.

Under current President Moon Jae-in, South Korea is prioritising Southeast Asia and India as much as Eurasia. Moon’s New Southern Policy — an effort to increase economic and cultural cooperation with ASEAN, and economic and security cooperation with India — is a key tenet of his administration’s foreign policy. Moon himself has already visited Singapore and Vietnam twice and India, Indonesia and the Philippines once since taking office in May 2017.

Originally conceived as a commercial endeavour, the economic component of the policy has recently increased in strategic significance due to discussions with the United States regarding South Korean participation in Washington’s Free and Open Indo-Pacific strategy. The Trump administration wants South Korea to sign up to the infrastructure, energy and development projects that it plans to implement throughout the region.

South Korea is likely to join some of these projects on an ad-hoc basis for the same reasons that it decided to join the Asian Infrastructure Investment Bank. Seoul sees the benefits of improving economic conditions in the Indo-Pacific as it seeks to find new markets for its goods and services. These projects also present chaebols and other South Korean companies with investment opportunities in a region with vast infrastructure needs. But Seoul is unlikely to sign up to each and every project. The Moon government does not want to be seen as simply following Washington’s lead.

The situation becomes more complex when it comes to security considerations in the Indo-Pacific. In November 2017, President Donald Trump suggested that South Korea should participate in his Free and Open Indo-Pacific strategy during a meeting with Moon. But Seoul did not sign up to the strategy. Tellingly, the meeting’s official joint statement attributed the stated importance of the US–South Korea alliance to the Indo-Pacific to Trump only.

From Seoul’s perspective, participation in security initiatives led by the Quadrilateral Security Dialogue (Quad) run the risk of antagonising China. In common with most countries in neighbouring ASEAN, South Korea does not see the need to take sides in the China–US strategic competition. Certainly, the alliance with the United States remains a linchpin of South Korean foreign policy. But, for Seoul, this does not mean joining initiatives that could alienate China.

Instead, Seoul sees its security role in the Indo-Pacific much as it sees security cooperation with India: based on ad-hoc diplomatic support for non-controversial security initiatives. This explains why South Korea recently became a dialogue partner of the Indian Ocean Rim Association. The association is a diplomatic initiative aimed at fostering dialogue and cooperation, including in the areas of maritime security and disaster risk management. In other words, no country is being targeted by the association, whether explicitly or implicitly. This suits the Moon government.

This does not mean that the South Korean navy will not be deployed to the Indian Ocean under any circumstances. In October 2018 the South Korean navy reaffirmed its commitment to developing a blue water naval fleet. And the South Korean anti-piracy Cheonghae unit has been part of multilateral efforts to fight piracy off the coast of Somalia since March 2009. As a rule of thumb, multilateral operations approved by the United Nations Security Council (in other words, by both the United States and China) are likely to count South Korea in.

But there are no real prospects for South Korea becoming a formal and full-fledged member of the Quad in the short term, even if only for security discussions. Absent significant escalation from Beijing, such as blocking trade routes through the South China Sea, Seoul sees little benefit in potentially antagonising China by joining permanently. Not to mention ever-present tensions with Japan that make Seoul hesitant to join any security initiative that includes Tokyo.

In the absence of an explicit Indo-Pacific strategy, Seoul’s New Southern Policy and behaviour in the Indian Ocean serve to demonstrate South Korea’s approach to the region. This approach is based on participation in economic projects that suit Seoul’s needs, support for truly multilateral initiatives and prevention of any perceived antagonism towards China. South Korea does not see the benefits of taking sides in the Indo-Pacific and will not do so absent a major provocation from Beijing.

Ramon Pacheco Pardo is KF-VUB Korea Chair at the Institute for European Studies of Vrije Universiteit Brussel and Reader in International Relations at King’s College London.



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