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10 December 2020,

To formalize the Quad – or not

Should the Quad be formalized? It has evolved from a crisis response group in 2004 to a strategic partnership today between the four member-countries – India, the U.S., Australia and Japan. There are benefits and challenges to the institutionalisation of the Quad which require timely analysis, especially as the group has renewed vigour this year with the COVID-19 pandemic and China’s aggression in the Indo-Pacific region.

Senior Researcher, International Law Studies Programme

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The Quad, comprising India, Australia, Japan and the U.S., first came together in 2004 to respond to the devastating Tsunami on December 26 that year, which caused extensive damage to the Indian ocean coastline and took over 200 thousand lives. The coalition of four successfully aided disaster management, providing crucial humanitarian assistance at that time.[1] Little did the Quad know then that it would be the beginning of a long-term strategic partnership, that was empowered to counter several global threats – political, economic security, and environmental.[2]

This year especially, the Quad has found fresh force and focus in light of the COVID-19 pandemic and China’s persistent aggression, evident from its foreign investments in strategic sectors, trade war with the US, its dangerous centrality in global value chains across sectors, and its debt diplomacy through the BRI project. Is this a compelling case to consider making the Quad a permanent institution?

The Quad is currently an informal body, serving only as a platform for dialogue at the mutual will of the four nations. This means that nothing it does is binding. It is not structured, not working towards a defined vision or mission, nor bound by a set of rules or mandated to operate within a set framework or governed by stipulated principles.

Should the Quad be formalised? There are benefits and challenges in becoming a structured multilateral body.

There are several benefits, including having a defined structure, accountability and enforcement sanction, dispute resolution powers and continuity.

1. Defined structure and functionality: A formal body is built on the foundation of aligned interests between nations. It provides a framework of operation and a rule-based order, thereby falling within the ambit of international law. For example, the United Nations is governed by the UN Charter (along with other subject-wise agreements and treaties) and all its members are bound by the stipulated rules. Another example is that of the SCO, where even though countries which otherwise have adversarial relationships (India-China-Pakistan), adhere to the principles enshrined in its constitution to discuss issues of regional and global relevance.

2. Accountability and enforcement: A legally recognised body has the power to enforce decisions and hold non-compliant actors accountable. For example, the UN sanctions have been effective as any non-compliance has stringent penalties. Pakistan has been placed under the greylist of the FATF[3] after its continued non-compliance with UN sanctions in addition to monetary penalties. Thus, a framework of enforcement acts as a deterrent for member-countries.

3. Effective dispute resolution: An informal body is not empowered to legally administer disputes between nations. This is especially important when member countries are at different stages of economic progress. A formal body will usually have a process for dispute resolution. An effective dispute resolution mechanism will be both flexible and binding.

The United Nations Convention on the Laws of the Sea (UNCLOS) is one treaty with a comprehensive dispute resolution system that has seen success. It lays down the procedure whereby the default system of resolution is arbitration but parties can make declarations to go to either the International Court of Justice, International Tribunal for the Law of the Sea (ITLOS), or other tribunals for special matters.[4]

For maritime disputes, both the ITLOS and the Permanent Court of Arbitration have had success with the resolution of disputes between Bangladesh and Myanmar[5], and Bangladesh and India[6] respectively, which have been substantially followed by the nation-parties to the disputes.

4. Continuity: A framework for holding Summits and meetings, provide a regular opportunity for dialogue between different countries. Often the bilateral or trilateral meeting on the sidelines serve well to smoothen country-to-country relationships even when competing interests exist. For example, despite the Doklam stand-off taking place only a week after the India-China bilateral at the 2017 SCO Summit, the 2018 SCO Summit gave India and China another bilateral opportunity to smoothen their relationship.

There are several challenges too, like limited flexibility, fears of monopolisation, structural issues, and potential threat.

1. Limited flexibility: The membership is fixed and there is usually a defined process to include new members including nations or institutions. This procedure has substantive characteristics and procedural requirements.  For example, to join the United Nations, the basic formula to be admitted is laid down in United Nations Charter[7], which is further supplemented by the UN General Assembly Rules of Procedure and UN Security Council’s Provisional Rules of Procedure, making the member addition a cumbersome process.  The SCO too has a fixed procedure in its Charter, which is further supplemented by the ‘Regulation on Adding New Members’ to the SCO.

2. Monopolization fear: In a formal structure, often the developed nations tend to dominate and leave behind the interests of the smaller nations. For example, the UN Security Council (UNSC) continues to be dominated by the P5 – USA, China, Russia, United Kingdom and France -, with no representation from developing countries. This creates an unequal playing field – the UNSC has often been accused of ignoring the issues of developing nations.

3. Structural issues: An institution built on a weak or ineffective charter or rules, is as good as one that is unstructured. For example, the SAARC is a fragile institution as it lacks the financial stability and the force to resolve conflicts, especially when bilateral conflicts arise, such as between India and Pakistan which affected the SAARC discussion on trade.  The weak structure has blighted the institution’s efficacy, and made it almost redundant.

4. Potential threat: A new structured body may be seen as a threat to existing institutions. For example, the formalisation of the Quad is already being viewed with dubious scepticism by the ASEAN to which China is central.

A strong and robust Quad, should it formalize, will need to overcome these challenges by ensuring a legally adept charter, a rotating presidency (like the G20), a permanent secretariat and continued efforts to build its external relationships with other multilaterals such as the ASEAN.

The institutionalisation of the Quad will assure it permanence and the effectiveness that is needed as the world embraces a new, post -globalisation era.

However, before the four governments advance on this, they must find alignment amongst themselves by setting out a clear vision and goals.[8] The outcome of that discussion could be modelled along the lines of the 1941 Atlantic Charter between the U.S. and the U.K., which laid down certain principles but lacked legal enforcement. The Quad should go a step further, with a written and signed charter that defines its mission, functioning, decision-making, financing, establishment of a secretariat and a sound dispute resolution mechanism. This is critical as the Indo-Pacific, the focus of the Quad, is still a fluid concept, with an unknown future, that needs to accommodate for dynamism and change.

Ambika Khanna is Senior Researcher, International Law Studies Programme, Gateway House.

Kartik Ashta is Research Intern at Gateway House.

This article was exclusively written by Gateway House: Indian Council on Global Relations. You can read exclusive content here.

For interview requests with the author, please contact outreach@gatewayhouse.in.

© Copyright 2020 Gateway House: Indian Council on Global Relations. All rights reserved. Any unauthorized copying or reproduction is strictly prohibited.

References

[1] On Relief Efforts in the Wake of the Tsunami, Ministry of External Affairs, Media Briefings, 30 December 2004, https://mea.gov.in/media-briefings.htm?dtl/4585/On+relief+efforts+in+the+wake+of+Tsunami

[2] Most multilateral bodies including the G20, United Nations and International Monetary Fund originate out of a crisis. It was thus, only in the face of the next crisis in 2007 that the Quad once again activated – to address the assertiveness exhibited by China over the maritime waters of the South China Sea. However, Australia withdrew soon after when its bilateral relationship with China came under stress. The other nations too did not have much stake in the region, and hence the vigour with which the Quad began fizzled into dormancy.  It was only almost a decade later, in 2017 on the sidelines of the ASEAN Summit, when the Quad was reconvened in light of Chinese aggression in the maritime waters of the South China Sea and its non-acceptance of the 2016 arbitral award under the UNCLOS. The Quad has been meeting regularly since, however, has not yet released any joint communique.

[3] Improving Global AML/CFT Compliance: On-going Process – 29 June 2018, Financial Action Task Force, http://www.fatf-gafi.org/countries/d-i/iraq/documents/fatf-compliance-june-2018.html

[4] United Nations Convention on the Laws of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397, Article 287

[5] Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, p. 4.

[6] Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India, PCA Case No – 2010-16, ICGJ 479 (PCA 2014), 7 July 2014.

[7] Charter of the United Nations Organisation, Article 4, 24 October 1945.

[8] India has granted priority status to the Indo-Pacific. It recently created an Oceania division, with a specific focus on the Indo-Pacific, within the Ministry of External Affairs.

 

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