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Asia-Pacific

Game On, Again? Vietnam Planning to File Legal Action Against China Over South China Sea Dispute

by Julian Ku

There have been lots of reports out in the last 24 hours saying that the Government of Vietnam is planning to take legal action against China for its movement of an oil rig into disputed waters in the South China Sea.  Indeed, the Philippines Government has stated that Vietnam has consulted it about its ongoing arbitration case against China and the two nations issued a joint statement of solidarity opposing China’s actions in the South China Sea.

What would the Vietnam legal action look like? The most likely action would be to seek arbitration under Annex VII of UNCLOS, just as the Philippines has done.  Of course, China would have the same defense and likely the same reaction to any Vietnam claim: that China’s Article 298 declaration excluding disputes over matters involving “sea boundary delimitations”or “involving historic bays or titles….” would exclude jurisdiction.  Moreover, China might further argue that Article 298 also allows it exclude “disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction….”

At first glance, I can’t see how Vietnam’s claim would be any better or worse than that of the Philippines with respect to jurisdiction.  Vietnam has the same objection to China’s Nine Dash Line, and Vietnam similarly argues certain South China Sea features claimed by China are not “islands” for purposes of UNCLOS entitled to an Exclusive Economic Zone.  So I think we will see a rerun of the Philippines arbitration.  Vietnam will constitute a tribunal, China will not participate, and away it goes.

Some other reports out of Vietnam suggest it will file a claim with the International Court of Justice, if only to show their good faith, even though the ICJ has no jurisdiction over China.  I don’t think this is a great strategy, but maybe it will be a useful diplomatic showcase.

Finally, there are reports Vietnam will allow its state-owned oil company to file an action against China’s state-owned oil company in Vietnamese courts.  This actually seems like an interesting idea, since once the Vietnamese company won the judgment, it could in theory try to enforce it against the assets of the Chinese company overseas.  It is not a slam-dunk, but it certainly could be a plausible claim.

I am doubtful that  an additional arbitration will lead to China backing down.  Certainly, the Philippines arbitration has not caused China to moderate its behavior toward the Philippines.   The extra added pressure of  a Vietnam arbitration is not huge, and my guess is that China will continue to simply ignore the arbitrations, reputational costs be damned.  I am not saying that it is bad strategy for Vietnam to try the arbitration route, but Vietnam should be realistic about the veryreal costs, and limited benefits of this strategy.

Why Taiwanese Investors Should Think About Becoming Chinese (At Least When Suing Vietnam)

by Julian Ku

I’ve been settling into my digs this summer at the National Taiwan University College of Law as a visiting research fellow with the support from a grant from the Taiwan Fellowship. Mostly, I’ve been spending my time eating my way through what I believe is the best Chinese food scene in the world  (I am posting pictures of my eating exploits on my facebook page for those interested in Chinese food).

But in between absurdly delicious meals, I have also been following the anti-Chinese riots in Vietnam that have caused over 500 different businesses to be shut down there over the past week and thousands of Chinese and Taiwanese nationals to flee Vietnam. Those violent riots were apparently in response to China’s placement of an oil rig in disputed South China Sea waters.

The lively Taiwanese media has been following these riots with much more intensity than their Chinese counterparts, because a large proportion of the burned or trashed businesses are actually owned by Taiwanese nationals, with Chinese workers or managers administering it for them.  TV news here is filled with pictures of Taiwanese flying home with harrowing stories of dodging rioters by hiding in trash cans, etc.  Their plight has caused some soul-searching here in Taiwan because Taiwan’s status as a non-country that is recognized in Vietnam only as a province of China means they receive the blowback for China’s actions and Taiwan’s government has limited means to respond and protect their own nationals.  (Their foreign ministry did helpfully issue stickers to their nationals saying, in Vietnamese, “I am from Taiwan”. Reminds me of the time I was told to put little Canadian flags on my backpack when I wandered through sketchy areas of Egypt).

In addition to advising their nationals to emphasize their “Taiwaneseness”, the Taiwan government’s main action has been to invoke the 1993 Taiwan-Vietnam Investment Promotion and Protection Agreement (in Chinese).   The Taiwan government is using this agreement as proof that it can protect and seek compensation for its nationals abroad.

This is sort of like a bilateral investment treaty, but not quite, because of Taiwan’s odd non-country status.  It is technically an agreement between the “Taipei Economic and Cultural Office in Vietnam and the Vietnam Economic and Cultural Office in Taipei” which means it is an agreement between two quasi-government agencies, and not the governments as a whole. This means it is unlikely to be governed by international law, although the agreement doesn’t choose any governing law either.  Moreover, the agreement does not provide for referral to an ICSID tribunal for any investor claims against the host government (in this case Vietnam). Rather, it seems to allow for referral to arbitration under the “1988 International Chamber of Commerce” Rules.  Moreover, such referrals seem to require the mutual consent of the parties in Article 8.  This might allow Vietnam to block a referral to arbitration by a Taiwanese investor.  (Oops! This provision refers to disagreements between the two parties to the agreement, not the investor and the host state. Sorry about the misreading. But I think my larger critical take stands). Since the Agreement doesn’t otherwise waive Vietnam’s state immunity, I am not confident about the ability of an investor to enforce any awards from an ICC tribunal without such consent anyway.

In other words, I am skeptical that the Taiwan-Vietnam Agreement is going to be very effective at winning compensation for investors.  Instead, if I was a Taiwanese investor, I would think about invoking the Vietnam-China BIT.  True, that agreement is limited to natural persons and economic entities who have the “nationality of the People’s Republic of China”, but it is not entirely clear this would exclude the PRC’s “Taiwanese compatriots” who are officially treated in China as “nationals” for some purposes.  Even if this argument doesn’t fly, many of the Taiwanese companies in Vietnam may have Chinese national employees or entities that could make a claim on their behalf.  Of course, this would be pretty bad PR here in Taiwan, where no one really wants to be associated with the Chinese government.  But if they managed to get an ICSID tribunal constituted, a Taiwanese investor has a much better chance to forcing Vietnam to pay out compensation under the Vietnam-China BIT than the Vietnam-Taiwan agreement.  Another example of why being a non-state is such a pain for Taiwan and the Taiwanese.

So How is China Reacting to the Philippines Arbitration Submission? Not Very Well

by Julian Ku

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)

Whale Wars Day of Judgment: ICJ Rules Against Japan

by Julian Ku

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.

Game On! Philippines Files (4000 page) Memorial in China UNCLOS Arbitration

by Julian Ku

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.

Whale Wars: Is This The End?

by Julian Ku

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.

Why Won’t the United States Call China Killings a Terrorist Attack?

by Julian Ku

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;
Look, I get that this definition is quite broad, and is controversial in many countries. And I get that the Uighurs have real grievances. But the US government is already on the record in favor of the broad definition. So why hold back from using the term for an act the US already calls unjustifiable?

Chinese Victims of Forced Labor Sue Japanese Companies in Chinese Courts; They Might Even Win

by Julian Ku

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.

 

Should Taiwan and China Join Forces in Defending Territorial Claims?

by Julian Ku

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.

A Modest Suggestion for the Ukrainian Parliament (Updated)

by Kevin Jon Heller

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.

Japan and Korea Take Their (History) Wars to U.S. State and Local Legislatures

by Julian Ku

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

by Julian Ku

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.