(Title Image: Voyager I via liberaterva.com)

The final two parts in this series will try to answer the “What would Wales do on the international stage?” question. Today I look at what Wales will be obliged, or expected, to do.


The Concept of State Responsibility

Nation states have ultimate control over matters within their own territories – a principle of international law known as Westphalian sovereignty. Though due to increasing global interdependence, no nation is completely independent with absolute control over what happens within their borders; not even “hermit kingdoms” like North Korea or seemingly unassailable superpowers like the United States. Prior to the foundation of the League of Nations, and later, the United Nations, the universal responsibilities of nation states, as well as their obligations to each other, were never properly codified or expressed. The rise of “non state actors” like Al Qaeda and Islamic State, as well as increased globalisation, have complicated matters further.In 2001, the International Law Commission (ILC – established by the UN General Assembly) published the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (pdf). It outlines precisely what counts as an “internationally wrongful act”and lists defences which may justify a wrongful act (such as self-defence or force majeure – like a natural disaster).

What these draft articles lack is a definition of an “international crime” where states would be a culpable party. Originally, it included a section which listed international crimes such as: acts of aggression, denying self-determination, human rights violations or damaging the environment in contravention of international agreements.

Disputes

The Draft Articles outlined that states which breach international responsibilities could needto make full reparation for the injury caused by the internationally wrongful act” and that, “Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.” In all cases, international law would override domestic law.The Articles state that “injured” states have a right to issue notice of a claim for compensation, reparation, restitution or “to seek satisfaction”. Firstly though, it has to be proven that another state was responsible for the injury – and, importantly, this includes actions by organs of the state, such as governments/people working on behalf of a government, terrorist groups, multinational companies and NGOs.

Ordinarily, you would expect such cases to be heard by the International Criminal Court (ICC), United Nations Security Council or other major bodies like the World Trade Organisation (Part VI). In less serious cases, it rests on negotiations between governments through “shuttle diplomacy” or using other diplomatically-experienced nations as intermediaries.

When you consider the relative geographical isolation and security of Wales, the chances of a major dispute involving Wales post-independence are rather slim. However, there are hypothetical situations which could lead to an international dispute:

Border Disputes – The Anglo-Welsh border is universally accepted. Apart from the Monmouthshire irredentism by English nationalists (you could argue Oswestry too from the opposite direction) there’ve been no significant changes in hundreds of years. One problem in that the Rivers Dee and Wye form significant sections of the border and river courses tend to change – a similar situation has caused a dispute between Croatia and Serbia. The same goes for maritime boundaries, where Wales will not only border England, Northern Ireland and the Republic of Ireland, but the Isle of Man too. This is important in the development of offshore renewables like wind and tidal, and border issues could cause complications.

Cross-border issues – Water and energy are obvious ones, health is an obvious one too. Although devolution has already separated the health services of the UK, independence would be another step up, and Welsh patients being treated in English hospitals (and vice versa) would be considered foreign. As we would no longer be subject to certain health care rights citizens enjoy as part of the EU, there would have to be high level co-operation between governments and health services to ensure things run smoothly. If they don’t, there’s the prospect of an international dispute developing, which is more serious than the current situation of two governments squabbling every now and again.

Nationalisation – What would happen if an independent Welsh Government decided to nationalise assets presently owned wholly or partly by a foreign company? The short answer is that although governments have a general right to nationalise assets, the companies involved have to be compensated. Bilateral trade agreements between nations, or between trading blocs (like the controversial TTIP), may have clauses inserted which either limit nationalisation powers or give companies the power to sue governments. Disputes of this nature are usually arbitrated by the International Centre for the Settlement of Investment Disputes (ICSID), based in Washington DC.

Extradition– The word “extradition” conjures up images of murderers on the run or terror suspects. However, extradition and deportation procedures could just as easily apply to poorly-behaved Welsh tourists (“abroad” would include England post-independence) and tourists from the rest of the former UK in Wales – case in point being the tourists on a Malaysian mountain in June 2015. Some cases could be extremely controversial and end up dragging in asylum issues. US military whistleblower, Chelsea Manning, could probably have claimed asylum in Wales if it were independent (she could qualify as Welsh via residency), which would’ve certainly prompted a diplomatic dispute with the United States. Of course, there could be bilateral agreements on extradition, but there’s the danger that such agreements would be exploited.

The Geneva Conventions

The Geneva Conventions are a series of treaties and protocols (Part VIII) developed from the mid-19th century onwards and are regarded, in international law terms, as the gold standard “rules of war”. They’re held in such high-regard even Nazi Germany (partially) complied with them – when it came to Allied prisoners, anyway.

Key provisions include:

  • The use of a protective symbol (red cross, red crescent, red crystal) whereby vehicles and troops who bear the symbol must be protected by all sides in a conflict.
  • Wounded and sick must be cared for regardless of whose side they’re on.
  • A legal definition of “prisoners of war”, a duty of general protection of prisoners of war, and minimum standards of their treatment whilst interred.
  • A legal definition of “war crimes”, including use of prisoners of war for medical/scientific experiments, degrading treatment, hostage-taking, theft/pillaging and unlawful imprisonment.

Additional protocols and the wording of the treaty mean that the Geneva Conventions apply in all cases of “armed conflict”, including humanitarian interventions, insurgencies, civil wars and undeclared wars. So even if Wales only confines itself to peacekeeping missions, or doesn’t have a military at all, the Conventions apply. Practically all nation states are party to the first Geneva Convention (1949) at the very least.

Diplomatic Protocol & Etiquette

Many states issue their own diplomatic protocols as a code of conduct for the behaviour of state officials like politicians, ambassadors and high commissioners; here’s a copy of American diplomatic protocol produced by the US State Department (pdf). It’s sounds stuffy, but when dealing with cultures that might be largely alien, the slightest thing could cause a diplomatic incident. Wales would have to consider its own protocol.

Then there’s the significantly more weighty issue of diplomatic recognition, where a state legally recognises another state as in control of a territory. This recognition is usually de jure – legally-binding under international law via an official statement of recognition.

Some sort of protocol would have to be developed for Welsh responses, but it would be a Welsh decision alone. Formally recognising Taiwan (as opposed to Chinese Taipei) or Tibet would cause problems with China. Likewise, being quick to recognise secessionist states in Europe (like Catalonia, Kosovo or the Basque Country) could cause diplomatic problems with Spain….however ironic that sounds.

Sometimes these decisions would taken in the wake of a wider international responses – for example, if big EU members like Germany, Poland or France choose to recognise a newly-independent Palestine, Galicia or Asturias it would give Wales the green light to do so too. It would also be ill-advised to recognise any newly-independent state that has gained independence/autonomy through violence, a coup, or in violation of the UN Charter (like Islamic State, or Russian puppet states in the Caucasus).

A more practical day-to-day issue is diplomatic immunity. In shorthand, it means diplomats have certain rights that mean they’re free from prosecution for certain crimes, and also have an absolute right to privacy and free movement. Diplomatic missions (embassies, consulates etc.) also can’t be entered by the host nation unless they have permission from the highest-ranked diplomatic officer based at the mission. These rights are enshrined in the Vienna Convention on Diplomatic Relations 1961 (pdf).

These rules can be, and are, regularly abused. Diplomats based in New York City, for example, are notorious for not paying parking fines. Diplomats in London sometimes fail to pay the congestion charge, while many embassies run up large debts in back rent. It’s inevitable that some of this would happen in Cardiff, but there’ve also been more serious cases of diplomats being involved in drug smuggling and human trafficking.

Despite being protected, diplomats can still be expelled by the host nation under international law if they commit a serious transgression (aka. declaredpersona non grata). States can also recall ambassadors if diplomatic relations deteriorate.

If Wales wants to enjoy a good reputation around the world, we would do well to ensure our diplomats have impeccable standards of behaviour, clean criminal records and a firm understanding of local cultures. Again this could be included as part of public service training.

Climate Change

The issue of climate change has prompted nations to look at foreign policy in a different way. The planet, as a resource in itself, is something all nations share meaning no nation exists in isolation when it comes to activity which damages it. There’s no use one country decarbonising if another, rapidly-developing country, presses ahead with fossil fuel energy to meet growing demand.

Despite this, as said by the Centre for Foreign Policy’s RG Bell, climate change remains a relatively low priority policy for many countries.

There’s political agreement that global warming has to be capped at 2C above the pre-industrial average to prevent irreversible climate change. However, the scientific argument is that there should be no warming, or that the temperature is rising ro rapidly; the 2C “ceiling” might be breached in the 2020s or 2030s – it’s already close to 1C.

The 1997 Kyoto Protocol established “carbon trading” where nations producing more than their proportionate share of carbon can buy extra carbon from under-producing nations. Although it sets a global cap on carbon emissions, the approach has been criticised because it means industrialised countries can maintain consumption levels, while developing countries are incentivised not to develop their own economies. It also means there’s a short-term micromanagement of carbon emissions with a lack of whole-system focus.

At a Welsh level, the Wellbeing of Future Generations Act 2015 was praised by the director of the UN’s Sustainable Development Division after it receive Royal Assent back in April 2015 – why I don’t know, as I still maintain that while its intentions are good it was a poorly-drafted law. The Kyoto Protocol also set a target of an 80% reduction of greenhouse gas emissions by 2050 (from 1990 levels) – something written into the Environment Bill.

The worrying aspect is that the Kyoto Protocol has never been ratified by the United States – one of the world’s biggest polluters – has led to the withdrawal of Canada (a big oil producer), and doesn’t set any binding targets for emerging powers like Brazil, China and India.

It’s hoped a UN summit in Paris in November-December 2015 will set a binding agreement on greenhouse gas emissions and a ceiling on global warming.

If/when Wales becomes independent, we’ll have to stick with it too, but with the presence of major carbon-producing industries like steel-making it might be an economically difficult process.

Foreign Aid

As I said in Part I this is worth a separate look in its own right. I might return to this another time, so I’m not going to focus on the specifics of aid and refugees, just some of the commitments an independent Wales might be expected to make.

There are 8 international development goals UN states have agreed to work towards over 15 years, including: eradicating extreme hunger, improving education for women in the developing world, improving maternal health, providing universal primary education and trying to reduce the impact of AIDS and HIV. These are the Millennium Development Goals, and its 15-year programme comes to an end this year.

It’s actually gone some way to meeting the 8 goals:

There’s always more to do, and a new set of 2015-2030 development goals are still being discussed. The draft proposals are to eliminate “extreme poverty” by 2030, promote sustainable development to halt environmental degradation, and the building of a global anti-poverty partnership based on groups of people, not governments – constructivism in action (Part II).

It would be incredibly optimistic to suggest Wales would become independent before 2030, and the 2030-2045 window is more realistic. It’s clear the trend is moving away from action on extreme poverty and disease (because it’s being slowly eliminated) towards my most hated buzzword – “sustainability”.

On the issue of foreign aid obligations, the UN’s target – set in 1970 – is for member states to spend the equivalent of 0.7% of Gross Domestic Product (GDP) on international development. In 2012 this would’ve been the equivalent of £352million for Wales. It’s actually a target the UK Government have – to their credit – enshrined in law.

“Foreign Aid” doesn’t mean literal aid: planes full of emergency supplies, emergency loans etc. It’s defined by the OECD as any action – including those by local governments and state agencies – that improves the economic development or welfare of a developing country.This would include some peacekeeping activities, cultural activities and the cost of using the military to deliver humanitarian assistance (Part VII).

So it doesn’t mean there has to be a ring-fenced foreign aid budget, and it’s likely that a Welsh defence budget would contribute the most towards foreign aid, alongside public donations or Welsh-based NGOs.

For example, you could take the idea of aWelsh Citizens Service and expand it into a US-style Peace Corps (OK, it’s likely to be predominantly made up by politically-connected middle class students on a gap yah) to include aid projects abroad in safe and stable countries)- it would all count towards the aid target.

Refugees & Asylum-Seekers

Like international development, the subject of immigration is worth covering separately in more detail.

The 1951 UN Convention on the Status of Refugees was drafted in the shadow of World War II, which saw mass movements and expulsions of people around eastern Europe. Refugees have certain protections under international law, and are also clearly defined as: 

  • A person outside of their country of residence/nationality.
  • Who is under threat of persecution if they returned based on religion, race, political beliefs or being a member of any other undesirable group.
  • War criminals and those suspected of non-political crimes are not included.

Refugees have a right to protection and asylum and are “to receive the same help as any other foreigner who is a legal resident”. The UN High Commission on Refugees (UNHCR) can offer financial and material assistance in circumstances where a host nation is overwhelmed and refugees have to be housed in camps.

Asylum-seekers (people whose refugee status is yet to be determined) have a right not to be deported and a right to “humanitarian standards of treatment”.

The UK currently inters asylum-seekers in detention centres if they’ve entered the country illegally (i.e. having not gone through the proper channels to get asylum) – and there’s nothing to stop nation states doing this as long as the detainees are treated fairly. Despite this, all signatories to the Convention are unable to introduce stricter criteria than those originally agreed in the treaty.

In turn, refugees are obliged to obey the laws of their host nation.

There’s too much here to go into any detail now, but according to the Wales Migration Partnership (pdf), in the first quarter of 2013 there were 1,571 asylum-seekers living in Wales. This is a rate of at least 513 asylum-seekers per 1million people, which is above the UK average (461), but below the OECD average (830).

So Wales is pulling more than its share of the weight within the UK when it comes to accommodating asylum-seekers but could probably do more when compared to the rest of Europe.

The final piece, Part X, asks a simple question: What’s Wales for?