China has not been quiet in reacting to the Philippines filing Sunday of its memorial in the UNCLOS South China Sea arbitration. In addition to the foreign ministry’s remarks, the People’s Daily has released a full-scale defense of China’s legal and policy position (recently translated here). It is the longest official (well, close-to-official) statement of China’s legal position on the arbitration as I’ve seen anywhere. The heart of China’s argument is that this whole Philippines dispute is about sovereignty over the Nansha Islands, parts of which the Philippines is illegally occupying. Because this is about sovereignty, and because China excluded maritime and territorial disputes from UNCLOS arbitral jurisdiction in its 2006 declaration, it is the Philippines (and not China) that is violating international law by filing the arbitration claim. Here are a couple of legal arguments or claims in the commentary that jumped out at me. (Read more after the jump)
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Here is the ICJ’s decision in “Whaling in the Antarctic” (Australia v. Japan, New Zealand intervening). Here is the Registry’s summary. The vote was unanimous on jurisdiction, and then 12-4 on the rest in Australia’s favor with judges Owada, Abraham, Bennouna, Yusuf dissenting. There was one aspect of the decision that went in favor of Japan (13-3) but that aspect of the decision shouldn’t affect the overall outcome significantly.
I won’t pretend to have digested this judgment in any rigorous way. I will note that the judgment calls on Japan to “revoke any extant authorization, permit or licence granted in relation to JARPA II, and refrain from granting any further permits in pursuance of that programme.” Japan’s implementation (or non-implementation) of this remedy will be worth watching going forward.
Just in time for the odd Sunday filing deadline, the government of the Philippines announced that it had submitted its memorial in its arbitration with China under UNCLOS.
Ignoring a possible backlash from China, the Philippine government transmitted the document, called a “memorial” in international arbitration parlance, on Sunday to the Netherlands-based Permanent Court of Arbitration where a five-member tribunal operating under the United Nations Convention on the Law of the Sea will hear Manila’s complaint.
“Today, the Philippines submitted its memorial to the arbitral tribunal that is hearing the case its brought against the People’s Republic of China under the United Nations Convention on the Law of the Sea,” Foreign Affairs Secretary Albert del Rosario told a news conference.
“With firm conviction, the ultimate purpose of our memorial is our national interest.”
Manila declined to release a copy of the memorial as it has yet to be reviewed by the court.
But Del Rosario said the Philippine “memorial” consists of “ten volumes with maps,” “nearly 4,000 pages” and will fortify the Philippine case which seeks to declare China’s exaggerated claim illegal. A hard copy will be forwarded to the tribunal on Monday.
I hope and trust that at least volume I of the memorial (containing the 270-pages of actual legal argument and analysis) is released publicly soon. I do think the additional 3700-plus pages of annexes is overkill in a case where the other side is highly unlikely to bother answering. Still, it will be an interesting public statement of the Philippines’ best legal arguments. I have grown increasingly skeptical of this Philippines argument, both from a legal and a strategic standpoint. But I would like to see their arguments.
On Monday, the International Court of Justice will announce its long-awaited judgment in Whaling in the Antarctic (Australia v. Japan). The judgment (scheduled for 10 a.m. Hague time) comes almost four years after Australia first filed its application way back in May 2010 (here is one of many prior posts where I complained about the length of time this judgment has taken).
This case will be the first time (I believe) that Japan has participated in an ICJ proceeding as a respondent and facing a binding judgment. Both Japan and Australia had no shortage of legal talent on their teams in this case. Australia is claiming that Japan is violating its obligations under the International Convention for the Regulation of Whaling by using the cover of “scientific research” to actually conduct commercial whaling. Japan disagrees, and my impression is that this will end up being more of a factual than legal determination by the ICJ here, but I haven’t been following the legal arguments very closely.
In any event, it will also be interesting to see how and if Japan complies with the ICJ’s ruling if it loses. I find it hard to imagine that the Japanese government will immediately comply, but it is hard to imagine Japan simply ignoring the judgment either. Since there is evidence the commercial viability of whaling in Japan is collapsing anyway, perhaps this is the excuse the Japanese government needs to end its whaling programs? In any event, if Japan wants to leave open international adjudication as a mechanism for resolving disputes with Korea or China, it needs to be careful in how it reacts to any adverse ruling here.
While Russia was stealing all the attention over the weekend, a small group of assailants wielding knives killed at least 33 people and injured over a hundred in the main railway station of Kunming, China. China’s government has called these “terrorist attacks,” and has hinted it is linked with Uighur separatists in China’s northwestern Xinjiang province. But the failure of the U.S. State Department to use the term “terrorist” has drawn outrage in Chinese social media.
I understand the U.S. government’s reluctance to endorse the Chinese government’s description of these attacks, but I still think the term “terrorist” is perfectly appropriate for this situation. The attackers indiscriminately killed and injured civilians in a train station, and there seems plenty of evidence that it is motivated by politics and ideology. To be sure, the international definition of terrorism remains contested, but the US law definition seems applicable.
the term “international terrorism” means activities that—
(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;(B) appear to be intended—(i) to intimidate or coerce a civilian population;(ii) to influence the policy of a government by intimidation or coercion; or(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping;
In a legal wrinkle to the ever-worsening Sino-Japanese relationship, the Chinese government has now publicly backed a lawsuit filed in Beijing courts against Japanese companies that used Chinese citizens as forced laborers during World War II.
The lawsuit names Mitsubishi Materials Corporation and Mitsui Mining and Smelting as defendants and asks for compensation of 1 million yuan ($163,000) for each defendant as well as apologies in the Chinese and Japanese languages to be placed with the country’s major media outlets.
Japan’s government has already opposed these lawsuits, saying that any such war reparation claims were settled by postwar agreements between China and Japan. Its spokesman:
“…I can say that since such problems were included in the Japan-China communique, there is no case,” he said. “The individual rights for seeking (compensation) were included in the communique.”
In a prior post, I noted that Korean courts have allowed similar lawsuits against Japanese companies to proceed despite pretty clear language blocking such lawsuits in the Korea – Japan Agreement on the Settlement of Property. Unless I am missing something, however, I don’t see any similarly clear language in either the China-Japan Peace Treaty or in the 1972 Communique re-establishing diplomatic relations. The Communique does contain this clause:
5. The Government of the People’s Republic of China declares that in the interest of the friendship between the Chinese and the Japanese peoples, it renounces its demand for war reparation from Japan.
This language could be read to bar claims by wartime victims against Japanese companies for forced labor, but that reading is far from clear (at least to me). If you compare this language to the Korea-Japan Agreement (“problems concerning property, rights, and interests of the two High Contracting Parties and their peoples (including juridical persons)” were settled) (emphasis added) and the US-Japan Peace Treaty (“the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war…”) (emphasis added), then the Japan-China Communique language looks far less protective..
In the China-Japan Communique, only the “Government of the People’s Republic of China” has “renounced its demand for war reparations.” The people of China, or individual Chinese people, might still have claims, and there is also no mention of waiving claims against Japanese persons or nationals. Normally, governments only have claims for reparations from other governments.
Moreover, while the U.S. took lots of Japanese property in “compensation” during its occupation of Japan before waiving its further claims, and Korea got the Japanese to pay a cool $300 million in 1965 dollars before settling its claims, the Chinese government got nothing (at least financially) for its agreement to waive its claims. This seems to further support the idea that some wartime claims still exist.
So read in context, the Chinese plaintiffs have a better case than their (already victorious) Korean brethren. It is also possible that the Communique (unlike the Peace Treaty) is a non-binding international agreement, which would also not have any direct effect in Chinese courts. So based on the relevant treaties and agreements, I think the plaintiffs have a decent case here. Inded, it is surprising that no similar lawsuit was filed before in Chinese courts. The reason probably has more to do with the nature of Chinese courts than the international treaties and agreements relating to this lawsuit.
As China continues to offend or at least alarm its neighbors in East and Southeast Asia with its expansive territorial and maritime claims, it is worth noting there is one important Asian player who wholeheartedly supports each and everyone one of China’s sovereignty claims: Taiwan. (Taiwan’s government even supports China’s sovereignty claim over Taiwan, just disputing which government is “China”.)
In fact, the government on Taiwan, as the Republic of China, is actually the government that originated the now highly-controversial Nine Dash Line when it was still in power on the mainland (actually, Taiwan’s line has Eleven Dashes, so it is even more expansive). And Taiwan has the exact same sovereignty claim over the Diaoyu Islands/Senkakus that China has. Taiwan actually houses a lot of the academic firepower and expertise on the international legality of these various maritime claims.
So this editorial from a pro-China Taiwan newspaper, calling for a joint China-Taiwan policy in favor of the South China and East China Sea claims, kind of makes sense. If you overlook the fact that the two sides are still technically at war and all that.
In my view, Taiwan should jettison at least the most expansive of China’s claims, especially the Nine-Dash-Line. It is odd, even ridiculous, for the government in Taiwan to support this claim of sketchy legality when (unlike China), there is no prospect of Taiwan ever asserting actual control over the South China Sea. And because the U.S. is now officially opposed to the Nine-Dash-Line, Taiwan needs to re-evaluate its position. If Taiwan sticks to its positions, and even starts cooperating with China on exerting their claims, then it is another sign that Taiwan is slowly drifting into China’s orbit and away from the U.S. It may be a sign that, as leading realist scholar John Mearsheimer wrote this week, Taiwan’s eventual domination by China is only a matter of time.
According to VOA News, the Ukrainian Parliament would like the ICC to investigate recently-deposed President Yanukovych:
Ukraine’s parliament voted on Tuesday to send fugitive President Viktor Yanukovych to be tried for ‘serious crimes’ by the International Criminal Court once he has been captured.
A resolution, overwhelmingly supported by the assembly, linked Yanukovych, who was ousted on Saturday and is now on the run, to police violence against protesters which it said had led to the deaths of more than 100 citizens from Ukraine and other states.
The resolution said former interior minister Vitaly Zakharchenko and former prosecutor-general Viktor Pshonka, who are also being sought by the authorities, should also be sent for trial at the ICC, which is based in The Hague.
The court says it needs a request from Ukraine’s government giving it jurisdiction to investigate Yanukovych and others over deaths during the protests.
I’m pretty sure the Court did not actually say that. Why? Because Ukraine has signed but not ratified the Rome Statute. And it can’t without Parliament’s intervention, because Ukraine’s Constitutional Court has held that the Rome Statute is not in conformity with the Ukrainian Constitution. So here’s a suggestion: before Parliament tries to send its former President to the Hague — and it would, of course, have to refer the situation in the Ukraine, not just him — it should amend the Constitution and ratify the Rome Statute.
All that said, there would be worse things than a Ukraine self-referral. After all, the Ukraine is not in Africa, and it’s unlikely that Yanukovych won’t eventually be apprehended. Prosecuting a former non-African head of state would do wonders for the ICC’s reputation.
UPDATE: In the comments, Shehzad Charania mentions the possibility of the Ukraine accepting the ICC’s jurisdiction on an ad hoc basis and then waiting for the OTP to initiate a proprio motu investigation. As I read the Constitutional Court’s decision, linked to above, that route is also foreclosed by the Ukrainian Constitution. Here is the relevant paragraph from the ICRC’s summary of the decision:
Article 124 of the Ukrainian Constitution states that the administration of justice is the exclusive competence of the courts and that judicial functions cannot be delegated to other bodies or officials. The Constitutional Court noted that the jurisdiction of the ICC under the Rome Statute is complementary to national judicial systems. However, under Article 4(2) of the Rome Statute, the ICC may exercise its functions and powers on the territory of any State party, and under Article 17, the ICC may find a case to be admissible if the State is unwilling or unable genuinely to carry out the investigation or prosecution. The Court concluded that jurisdiction supplementary to the national system was not contemplated by the Ukrainian Constitution. Hence, the amendment of the Constitution is required before the Statute can be ratified.
If the problem with ratifying the Rome Statute is that Ukraine cannot delegate the administration of justice to an international court, that would seem to prohibit accepting the ICC’s jurisdiction on an ad hoc basis, as well.
A lawsuit filed yesterday in California federal court seeks the removal of a statue in a Glendale, California public park honoring women victimized by the Japanese military during World War II. The placement of the statue was approved by the local city council with the strong support of Korean and Korean-Americans who want to recognize the suffering of the “comfort women”. The lawsuit appears to claim as one of its arguments that the local city council is interfering in national foreign affairs in violation of the US Constitution.
This lawsuit is only the latest front in a spreading battle between Korean and Korean-American groups and the Japanese government in various state and local legislatures. In Virginia, the state legislature (again with strong Korean-American voters support) passed legislation requiring textbooks in public schools to note that the Sea of Japan is also called the “East Sea.” New Jersey is considering similar legislation, and already has its own “comfort women” memorial.
As a legal matter, I can say with high confidence there is no serious argument that the placement of a statue in a public park, or the rewording of textbooks, violates the federal government’s foreign affairs authority under the Constitution. No legal rights of foreign nationals are involved, nor is this a matter traditionally handled by the national government, nor does the US-Japan Treaty of Peace preempt this action. So this aspect of the anti-memorial folks’ lawsuit seems pretty hopeless and borderline frivolous.
I am less sure about the policy benefits of this type of activity. For US legislators this is just a cheap and easy way to get support from a growing voter population. China’s government has tried a similar strategy to garner Korean friendship on a much grander scale when it put up a huge memorial to a early-twentieth-century Korean anti-Japanese revolutionary. But those actions are purely out of self-interest.
On the other hand, all of this seems like a relatively gentle way to prod the Japanese on these issues. In any event, expect to see more action at the state and local level in the U.S. One hopes (although this seems a vain hope) that this activity might even spark some useful Korean-Japanese debate on matters that they can’t seem to talk about much back in Asia.
Someone (Prof. Stefan Talmon) Finally Makes An Argument In Favor of China in the Philippines UNCLOS Arbitration
One of the most frustrating things about China’s response to the Philippines arbitration has been the brevity of its legal discussion and analysis. In particular, I’ve long thought that China had a pretty good argument that the Annex VII UNCLOS arbitral tribunal does not have jurisdiction over the dispute since, in many ways, territorial disputes are at the heart of the Philippines’ case.
But neither the government nor Chinese scholars have offered much flesh to this argument. The closest statement I’ve seen was Judge Xue Hanqin’s impromptu remarks at the Asian Society of International Law conference last fall and a very brief Global Times essay.. But all that has now changed due to a book chapter released by Professor Stefan Talmon of the University of Bonn. From his abstract:
The chapter examines whether the Tribunal has jurisdiction to hear the case, whether the claims brought by the Philippines are admissible and whether there are any other objections which the tribunal will have to decide as a preliminary matter. It aims to offer a (not the) Chinese perspective on some of the issues to be decided by the Tribunal. The chapter is to serve as a kind of amicus curiae brief advancing possible legal arguments on behalf of the absent respondent. It shows that there are insurmountable preliminary objections to the Tribunal deciding the case on the merits and that the Tribunal would be well advised to refer the dispute back to the parties in order for them to reach a negotiated settlement.
I’ve only taken a quick look at Prof. Talmon’s pretty comprehensive discussion, and it really does read like an “amicus brief” for China on the question of jurisdiction. I will have to consider more carefully Prof. Talmon’s claim that the 9-Dash Line claim can fit into the “historic waters” exception to jurisdiction, but overall it seems like a very careful and persuasive treatment.
For the First Time, U.S. Says China’s South China Sea Nine Dash Line is Inconsistent with International Law
As Jeffrey Bader of Brookings notes, the U.S. government has, for the first time, publicly rejected the legality of China’s “Nine Dash Line” claim in the South China Sea (for a little background on the unusual Nine Dash Line, see an earlier post here). This is a semi-big deal as it shows how the US is going to use international law as a sword to challenge China’s actions in this region.
During testimony before Congress, U.S. Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russel stated:
Under international law, maritime claims in the South China Sea must be derived from land features. Any use of the ‘nine-dash line’ by China to claim maritime rights not based on claimed land features would be inconsistent with international law. The international community would welcome China to clarify or adjust its nine-dash line claim to bring it in accordance with the international law of the sea.
It is actually surprising that the U.S. government has never actually publicly stated this argument before, since the Russel statement fits comfortably within the U.S. government’s long-standing positions on the nature of maritime territorial claims. And China could not have been unaware of US views on its 9-dash-line claim. But the U.S. also likes to repeat that it takes no position on any sovereignty disputes, and since the Nine Dash Line is sort of a sovereignty claim, it has always been a little unclear whether the US was neutral on the Nine-Dash Line as well.
Russel’s statement ends this ambiguity, and also offers more explanation on how the US “neutrality” in sovereignty disputes does not mean that it has no view on how those disputes would be resolved.
I think it is imperative that we be clear about what we mean when the United States says that we take no position on competing claims to sovereignty over disputed land features in the East China and South China Seas. First of all, we do take a strong position with regard to behavior in connection with any claims: we firmly oppose the use of intimidation, coercion or force to assert a territorial claim. Second, we do take a strong position that maritime claims must accord with customary international law.
Again, I can’t imagine this is a new US government position, but it is useful to make it clear publicly.
By tying itself to customary international law, the U.S. is challenging China to try to fit its Nine Dash Line into the legal framework created by the UN Convention on the Law of the Sea. Even some clarification from China as to the legal basis for its Nine Dash Line would be helpful, since it would shift the burden on China to explain its legal position.
Moreover, the US government is also offering a legal roadmap for other countries that are not claimants in the region. It is hardly a controversial legal position, and should be fairly easy for the EU, Canada, or Australia to adopt (assuming they don’t mind tweaking China).
Having wedded itself to international law, the US will now have to see whether China will start making non-legal claims or even noises about withdrawing from UNCLOS. The law definitely is not on China’s side here, but that doesn’t mean that China is going to back down in the SCS.
The New York Times reports that Ilham Tohti, a Uighur economics professor, has been arrested by Chinese authorities for separatism and inciting ethnic hatred. A number of his students are also seemingly being detained. Tohti is just one person and, perhaps unfortunately for him, his case is emblematic of larger regional tensions in China and Central Asia.
The Uighurs are a Turkic-speaking ethnic group, about 80% of whom live in the southwestern part of the Xianjian Uighur Autonomous Region in Western China. Xianjiang is a geopolitical crossroads and is also important for China’s energy policy, with significant oil and natural gas reserves. Moreover, a Council on Foreign Relations backgrounder on Xianjian and the Uighurs explains that
Xinjiang shares borders with Mongolia, Russia, Kazakhstan, Kyrgyzstan, Tajikistan, Afghanistan, Pakistan, India, and the Tibet Autonomous Region, some of which have minority communities of Uighurs. Because of the Uighurs’ cultural ties to its neighbors, China has been concerned that Central Asian states may back a separatist movement in Xinjiang.
The CFR also gives a précis of the last century:
Since the collapse of the Qing Dynasty in 1912, Xinjiang has enjoyed varying degrees of autonomy. Turkic rebels in Xinjiang declared independence in October 1933 and created the Islamic Republic of East Turkistan (also known as the Republic of Uighuristan or the First East Turkistan Republic). The following year, the Republic of China reabsorbed the region. In 1944, factions within Xinjiang again declared independence, this time under the auspices of the Soviet Union, and created the Second East Turkistan Republic.
In 1949, the Chinese Communist Party took over the territory and declared it a Chinese province. In October 1955, Xinjiang became classified as an “autonomous region” of the People’s Republic of China. The Chinese government in its white paper on Xinjiang says Xinjiang had been an “inseparable part of the unitary multi-ethnic Chinese nation” since the Western Han Dynasty, which ruled from 206 BCE to 24 AD.
And then we come to the story of Ilham Tohti, the economics professor. The New York Times reports:
A vocal advocate for China’s embattled Uighur minority, Mr. Tohti, 44, was the rare public figure willing to speak to the foreign news media about the Chinese government’s policies in the vast region that borders several Central Asian countries. He was also the target of frequent harassment by the Chinese authorities, especially after he helped establish Uighurbiz.net, a website for news and commentary on Uighur issues.
There has been unrest in China’s west over the past year…