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Asia-Pacific

Does the U.S. Congress Have to Approve the New WTO Agreement? Apparently Not.

by Julian Ku

Simon Lester of the IELP Blog raises an interesting and possibly important point about the new WTO Agreement just reached in Bali.  In order for the U.S. to enter into the agreement, will the U.S. Congress have to approve it?

On first glance, the answer would seem to be: “yes” since the U.S. Congress invariably is required to approve all U.S. trade agreements (as opposed to just the Senate, if it were a treaty).  In any event, I would have thought the U.S. Congress would have to approve the new Bali agreement as new legislation.  But then Simon points out this comment by U.S. trade officials from Inside U.S. Trade:

At the press conference, Punke said the Obama administration does not believe the deal requires congressional approval. “Our analysis of the trade facilitation agreement is it can be effectuated through administrative means and would not require legislation to put it into force,” he said. The obligations of the trade facilitation agreement are enforceable under the WTO Dispute Settlement Understanding.

This makes sense if one thinks of congressional approval of executive agreements as simply implementation of international obligations into domestic U.S. law.  But the congressional role in trade agreements has also been understood to fill in for the role of the U.S. Senate in approving treaties even if those treaties have no domestic law impact.  For U.S. law purposes, the President can’t enter into a treaty unless the Senate gives its advice and consent.  In the trade agreement context, I think many scholars have thought that Congress’ approval of those agreements by a majority of both houses serves the same role of giving the input of the legislature on the President’s decisions to enter into international agreements.

Or perhaps not.  Maybe the President really is free to bind the U.S. under international law via executive agreement on trade matters without any approval of Congress as long as no domestic law change is needed. This means that trade agreements really are just sole executive agreements that Congress is not really approving, but just implementing into U.S. domestic law.  And if no implementation is required, no Congress. This makes sense, but I just don’t think this the common understanding of how or why these congressional-executive agreements work.

One way out of this problem is (as Simon also points out) to understand the Bali Agreement as an amendment to the WTO Agreement. That agreement  (in Art. X) specifically outlines a mechanism for amendment which requires “consensus” (e.g. unanimity) or (depending on which provision is being affected) a two-thirds vote of the Ministerial Conference. In this way, Congress may be understood to have already approved future amendments to the WTO Agreement when it “approved” the original WTO Agreement back in 1994.  This “delegation” theory is probably a better explanation of why no congressional approval qua approval is needed for the Bali Agreement. Not totally satisfying, but probably enough here.

Why the U.S. is Not Invoking International Law to Oppose China’s ADIZ

by Julian Ku

China’s East China Sea Air Defense Identification Zone (ADIZ) has spawned tons of media commentary, so much so that I have had little to add and can barely keep up with all the coverage. Still, there is one small legal point that bears some further discussion.  While I think the U.S. is correct as a matter of policy to push back against China’s ADIZ, the legal framework underlying the U.S. position is awkward and borderline incoherent.  In fact, the confusing U.S. legal position may explain why the U.S. is not sympatico with Japan on China’s ADIZ.  Let me explain.

It is worth noting that U.S. has not condemned China’s ADIZ as a violation of international law. Instead, the U.S. has called it “unacceptable” and a change in the “status quo”.  Meanwhile, the Chinese have wielded international law as a rhetorical weapon on their side, by citing the U.N. Charter from the outset.  This may seem odd, but in fact, the Chinese are sort of right about this.

As Peter Dutton notes in his AJIL article, establishing an ADIZ is not in itself a violation of international law,  Indeed, it is usually justified by a need to create an early warning system to protect national airspace.  China’s ADIZ seems pretty large (map can be found here), and the U.S has rightly complained that aircraft just transiting the ADIZ should not be subject to China’s requirements if those airlines are not planning to enter (or even come near to) Chinese national airspace.

But China’s ADIZ is carefully drawn to include two sets of islands/rocks that it claims as sovereign territory: the Senkakus/Diaoyu (also claimed by Japan) and the Ieodo/Suyan Rock (also claimed by South Korea).  To the extent those territories are “national airspace”, China can argue that it should be allowed to draw an ADIZ around them to ensure any airplanes coming near them will not enter that airspace, etc.  As Zachary Keck suggests, China is using the ADIZ to subtly build its legal claim to sovereignty over the Senkakus/Diaoyu Islands. Hence, China is probably invoking the UN Charter’s self-defense provision to justify its ADIZ and its need for all foreign aircraft to report flight info/etc. when entering the ADIZ.  (Some commenters to my first post have suggested China can’t invoke self-defense over a disputed territory, or uninhabited islands that don’t otherwise threaten its national airspace.  I am not sure the customary practice is clear on this, since Japan’s ADIZ, which also covers the Senkakus/Diaoyu, couldn’t be justified either under this view. Also, for the purposes of this post, I am assuming China has a plausible claim to the islands).

Seen from this perspective (at least vis-a-vis the U.S.), China’s ADIZ is not inconsistent with any existing international agreement or customary legal rule.  This is largely because of the strange and confusing U.S. position on the sovereignty over the Senkakus/Diaoyu Islands.  The U.S. does not take any official position on which country (China, Taiwan, or Japan) has sovereignty over these islands.  But it recognizes that Japan has administration over them (indeed, it was the U.S. that turned them over to Japan back in 1972) and the U.S. has repeatedly declared that such islands fall within the scope of the U.S.-Japan Defense Treaty.But since the U.S. does not recognize Japanese sovereignty over the Senkaku/Diaoyu Islands, why should it complain when China draws an ADIZ intended to protect airspace over those islands?

This wrinkle in the U.S. position also explains Japan’s harsher reaction to the Chinese ADIZ. To Japan, China is literally demanding Japanese airlines report to its military before crossing airspace into or near Japan’s own national airspace.  It would be like China demanding information from US airlines flying between San Francisco and Hawaii (Congress would explode with indignation).  But from the U.S. perspective, China is just demanding information about airlines flying near disputed airspace that may or may not be part of China anyway.  This is a threat to freedom of international air navigation, but it is not anything like the same kind of affront to sovereignty that it is to the Japanese.

The U.S. position would be more legally coherent if it would simply recognize Japan’s sovereignty over the Senkakus/Diaoyu.  After all, if the U.S. Navy is willing to fight and die for these islands, the U.S. should at least decide whose owns these islands. (If China creates an ADIZ in the South China Sea, the U.S. will also have the same dilemma. See Michael Kelly’s recent essay on the strategic implications of such an ADIZ).  China is subtly probing the U.S. position here, and it has opened up a slight wedge between the U.S. and Japan.  But this wedge is a result of contradictions in the U.S. legal position, not China’s clever diplomacy.

Does the WTO need a New Agreement to Save its Dispute Settlement System?

by Julian Ku

The WTO’s new Director-General Roberto Azevedo is celebrating a rare event:  The WTO’s entire 159-country membership has finally reached  a new multilateral agreement.  This is the first time that the WTO’s membership as a whole (as opposed to smaller groups of its member states) has reached an agreement since it was formed in 1994 and the first set of agreements under the so-called “Doha” round of negotiations that has been going on since 2001.  Most commentary in the United States and elsewhere describe this as a pretty small-bore agreement on trade facilitation and agriculture (especially given the scope of the original agenda under Doha).

I am intrigued by some commentary coming out of Bali to the effect that a new agreement is needed to keep the WTO relevant and legitimate in the eyes of its members.  The WSJ has this unattributed comment:

Some negotiators said the limited pact gives the WTO credibility to continue its other main role: as an arbiter of trade disputes.

The WTO works by consensus and the breakdown of the talks could also have hurt the organization’s dispute-settling mechanism, they said.

I guess I am skeptical that the lack of progress on  new agreements will have any serious impact on the ability of the WTO’s famous dispute settlement body to stay relevant.  With or without the new agreement, the WTO is already an immensely deep and complex web of legal obligations for a larger and larger set of members. Interpreting these obligations, and managing disputes, is probably significant enough to most members that they don’t feel like they need a new agreement to stay engaged.

Anyway, the Bali agreement is only a “draft ministerial declaration” which needs to be formalized next year.  Then, the U.S. Congress will have a chance to vote on it (and probably the Asian and European regional trade deals).  This ought to be loads of fun in a congressional election year.  At least they don’t have to get two-thirds of the U.S. Senate on board.

Meanwhile, China Draws a Provocative, Dangerous, But Perfectly Legal Air Defense Identification Zone in the East China Sea

by Julian Ku

£¨Í¼±í£©[¶«º£·À¿Õʶ±ðÇø]¶«º£·À¿Õʶ±ðÇø»®ÉèʾÒâͼI don’t have any insights to offer on the big news this weekend, that legally-non binding-UNSC-resolution-violating agreement in Geneva.  But I did want to note one other big sort-of-law news item from the other side of the world: China’s announcement that it is drawing an Air Defense Identification Zone (ADIZ) in the East China Sea, including over the disputed Diaoyu/Senkaku Islands.

China’s announcement has riled up both Japan (which has declared it “totally unacceptable”) and the United States (which has expressed “deep concerns.”)

Why all the fuss? China’s new ADIZ appears to overlap with Japan’s own ADIZ in some crucial places (like the Senkakus/Diaoyu) as well as South Korea’s and Taiwan’s.  China has declared that aircraft entering its ADIZ must report flight information to Chinese authorities (actually, its military) and (here’s the scary part), “China’s armed forces will adopt defensive emergency measures to respond to aircraft that do not cooperate in the identification or refuse to follow the instructions.”  The U.S. is already hinting that it will test this resolve by flying aircraft through the ADIZ.  (Wonder which lucky US pilot draws that mission!)

Although provocative and dangerous, it seem clear to me that China’s ADIZ does not violate international law.  Indeed, China’s Foreign Ministry was perfectly correct today in its claim that its ADIZ is consistent with “the U.N. Charter and related state practice.”  Countries (led by the U.S.) have long drawn ADIZs beyond their national sovereign airspace as a measure to protect their national airspace.  This practice, although not exactly blessed by any treaty, does not appear to violate either the Chicago Convention or UNCLOS.  (See Peter Dutton’s very solid review of ADIZs here in the American Journal of International Law for a good discussion on this point).

If China has sovereignty over the Diaoyu Islands, then it is perfectly legal for it to declare an ADIZ beyond those islands to protect the airspace above those islands.  It is a little less clear why China needs the rest of the ADIZ, but it is presumably aimed at protecting its national airspace.  The U.S. State Department has already offered China an interpretive out of creating unnecessary conflict:

The United States does not apply its ADIZ procedures to foreign aircraft not intending to enter U.S. national airspace. We urge China not to implement its threat to take action against aircraft that do not identify themselves or obey orders from Beijing.

Now the accuracy of this description of US practice could be questioned, but it is probably right. In recent years, the U.S. has allowed Russian bombers to fly through its ADIZ over Alaska.  If China follows this practice, this could help a great deal to diffuse tensions. One can only hope. Early signs are not promising,as China has essentially told the U.S. to shut up and butt out of this issue.

China’s ICJ Judge Xue Hanqin Publicly Defends China’s Non-Participation in UNCLOS Arbitration [Updated]

by Julian Ku

xue

[This Post has been updated]. One of the main benefits of attending a conference (rather than just reading descriptions of its proceedings), is the chance to have face-to-face exchanges with individuals you normally never get a chance to meet.  One of the unusual aspects of the Asian Society of International Law is that it draws lawyers from many different Asian countries, even Asian countries locked into disputes with each other.  Like the Philippines…and China.

Which is why I was so pleased to witness a frank exchange last week at AsianSIL’s biennial conference in New Delhi, India between two unofficial but influential representatives of each country’s legal positions in the upcoming Philippines-China UNCLOS arbitration. In one corner, Prof. Harry Roque from the University of the Philippines presented a relatively even description of the Philippines’ claim against China during a panel on the Law of the Sea in Asia (click here for his blogging on this same event).  In the other corner, was Judge Xue Hanqin, China’s member of the International Court of Justice.  Although she was not listed as a panel participant, she stood up after Prof. Roque’s presentation to offer a 15-minute extemporaneous defense of China’s position.

Judge Xue is no longer officially affiliated with the Chinese government, but she has served in high diplomatic positions before her current post.  One of her prior positions, indeed, was as China’s Ambassador to the Association of Southeast Asian Nations (ASEAN) where she was involved in negotiations with Vietnam over maritime rights.  Moreover, she has served a general legal adviser to the Chinese Ministry of Foreign Affairs, including on its submission to the ICJ in the Kosovo advisory proceeding.  Her views are likely to be close or the same as the views of the Chinese government on these issues.  Since the Chinese government has offered almost no official explanation of its legal position, her statement may be the best we will get from China in the near future.[*UPDATE: On the other hand, Judge Xue wants to make clear she is not representing China in any official or unofficial capacity and that she does not endorse the summary of her views below. See below for her full disclaimer].

The following is based on my notes of her presentation. They are necessarily incomplete, but hopefully a fair summary of her views.

 

Notes from the Asian Society of International Law Biennial Meeting 2013, New Delhi

by Julian Ku

I’ve made the trek this week to New Delhi to attend the 4th Biennial Meeting of the Asian Society of International Law.  I’ll be presenting a paper on my favorite subject these days: The China-Philippines (Non) Arbitration. I’ve tweeted a few not very profounds thoughts on Day One here. AsianSil is quite a different type of meeting than the American Society of International Law meetings I am used to.  It’s a bit more formal, perhaps a little more of the feel of “foreign delegates” gathering for an international conference than an academic/public policy conference.  The hosts are very generous with their time and well-organized.

More substantively, I’ve found the different interests and approaches of Asian scholars to be illuminating.  Many Asian nations, including China and India, see themselves as still part the developing world trying to navigate a world dominated by western industrialized nations.  This theme seems to inform many of the opening speeches, including that by India’s Vice President Hamid Asari.  I will try to write something useful or interesting on Day 2 when I get a chance (or a better wifi connection).

China’s Definition of the “Peaceful Settlement of International Disputes” Leaves Out International Adjudication

by Julian Ku

China’s U.N. Ambassador made a typically anodyne statement recently to the U.N. General Assembly on the Rule of Law at National and International Levels. But there are a few interesting nuggets worth noting that reflect China’s skeptical attitude toward international adjudication.

Anyone who follows the Chinese government’s diplomatic statements will know that it repeatedly stresses the U.N. Charter’s obligation on states to seek peaceful settlements of international disputes.  But the Chinese here and elsewhere define this obligation more narrowly than many international lawyers or other states might define it.  From the “Rule of Law” statement:

The Chinese government actively upholds peaceful settlement of disputes, proposes to settle international disputes properly through negotiation, dialogue and consultation, thus maintaining international peace and security.

So far so good.  But for many international lawyers, and for many states, the “peaceful settlement of international disputes” would also include other means listed in Article 33(1) of the Charter.

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

(Emphasis added.)

Now Article 33(1) simply lists options, it does not mandate all states use every one of these processes to resolve disputes.  But it is striking how the Chinese government goes out of its way to downplay arbitration and judicial settlement from its public statements on “peaceful settlements of disputes” and in a statement about the importance of the rule of law at the international level.  Indeed, this particular statement on the rule of law goes out of its way to denounce the abuse of arbitration and judicial settlement.

The Chinese delegation believes that the decision to resort to arbitrary or judicial institutions to settle international disputes should be based on the principles of international rule of law and premised on equality and free will of states concerned. Any action to willfully refer disputes to arbitrary (sic) or judicial institutions in defiance of the will of the states concerned or provisions of international treaties constitutes a violation of the principles of international rule of law and is thus unacceptable to the Chinese government.

Hmm… I wonder what country has willfully referred a dispute to arbitration in defiance of China’s will recently?

I am not criticizing China’s legal position here, which seems eminently defensible and reasonable.  I do think that its approach, which privileges a state’s will and “sovereign equality” as a principle of international law, will naturally lead it to de-emphasize arbitration and judicial settlement. And since China’s opposition to the Philippines’ arbitration is based on a theory of state non-consent and lack of jurisdiction, I think it is unlikely to climb down from this position and accept the legitimacy of the UNCLOS arbitration.

Which is why I find it hard to accept the theory put forth by the Philippines lead U.S. counsel, Paul Reichler, as to why China will ultimately accept the arbitral tribunal award in that dispute. In an interview in the WSJ, Reichler relies on the reputational damage China will suffer if it defies the arbitral tribunal and the advantages China would get out of a “rules-based” system.  But China’s view of a “rules-based” system does not necessarily require it to submit to arbitration to set the “rules.”  China already has a robust vision of how it can be a “rule of law” nation and avoid arbitration and judicial settlement. Nothing the UNCLOS tribunal does will likely change this view.  Indeed, to the extent that other nations share its views, it will also lessen any reputation damage it suffers from a negative award.

How China Could Conquer Asia with Six Wars Without Violating the U.N. Charter

by Julian Ku

One possible silver lining in Russia and China’s invocation of the UN Charter to block U.S. action in Syria is that both nations have bound themselves (at least in part) to the same norm.  But at least with respect to China, it is probably not bothered by the UN Charter’s limitations on the use of force because any of the wars it is likely to contemplate would be (at least arguably) consistent with Article II’s self defense obligations.

For instance, this astonishingly fierce article (in Chinese, translation here)  from a nationalistic website in China and republished in HK, lays out “Six Wars China Must Fight in the Next Fifty Years.”  Those wars would involve invasions of the following places in the next half-century:

1) Taiwan
2) The Spratly Islands and the South China Sea (kicking out Vietnam and the Philippines)
3) Southern Tibet (along the border with India)
4) Diaoyu Islands and Okinawa (kicking out Japan)
5) Mongolia
6) Siberia (Russia)

For every single one of these proposed wars, China would raise the banner of self-defense under Article 51 since it claims sovereignty over each of the territories it would be invading.  Sure, some of their territorial sovereignty claims are complete bunk (Siberia?!?).  But there are certainly plausible legal arguments behind the rest of them.

Now, this list of “six wars” is the stuff of Chinese nationalistic fantasies, although any of the first four conflicts could really happen in the next few years.  But from China’s perspective, the UN Charter places almost no restraints on it since it does not restrict China from recovering territory lost to foreign powers in its past.  So China can talk as much as it likes about the sanctity of the U.N. Charter, because it will never feel serious constrained by it.

As a bonus for those readers intrigued by the New Chinese Imperialism, I highly recommend viewing this CG animation video of a joint China-Taiwan military campaign to invade and occupy the Diaoyu Islands, kicking out the Japanese as they do so.  It is like a video game, complete with a last scene with a disturbing depiction of a Chinese nuke used against Tokyo.  No wonder Japan is beefing up its military.

The larger point is that I have never understood why everyone thinks the UN Charter will constrain military action since almost all conceivable large-scale inter-state wars will involve territorial disputes where sovereignty is contested. That is certainly the case with China and it would be the case between Nicaragua and Colombia, or Chile and Bolivia, etc.  Perhaps the UN Charter constrains some countries, but I doubt it will constrain China if it ever embarks on these insane but not inconceivable plans for Asian domination.

Big News out of the ECCC

by Kevin Jon Heller

Andrew Cayley, the co-international prosecutor, has resigned effective next week:

British national Andrew Cayley told VOA that it was no secret he was planning to resign this year, but said he was leaving now for personal and professional reasons. He did not elaborate and said his resignation will not affect the ongoing prosecutions under his authority.

Cayley’s departure, which is effective September 16, comes at a crucial time in the court’s prosecution of two surviving Khmer Rouge leaders: Nuon Chea and Khieu Samphan.

Nuon Chea was Pol Pot’s deputy, while Khieu Samphan was head of state of the regime that is believed responsible for the deaths of two million people between 1975 and 1979.

The trial of the elderly defendants – known as Case 002 – is so complex that the court divided it into a number of smaller trials. The first of those mini-trials concluded in July. Since then the prosecution, the defense and the lawyers for the civil parties have been preparing their closing submissions.

All are scheduled to file their submissions later this month, with the court due to hear arguments in October. A judgment is expected next year.

Cayley said that process, as far as the prosecution was concerned, remained on track.

“What I’ve done in the past month – which I undertook to the UN to do – is I’ve put in place measures basically that the case will continue to a proper conclusion,” said Cayley. “Our written submissions are almost complete and will be ready to be filed on the 26th of September. So yes, it’s not an ideal situation, but certainly the office is well prepared for my departure. And the office is not just about me – it’s about a whole team of people working together, and me departing is not going to affect the quality of the work.”

As regular readers know, I have the utmost respect for the job Andrew has done under extraordinarily difficult circumstances. It’s remarkable, and a testament to his dedication, that he has survived at the ECCC for nearly four years. The tribunal has always had serious problems, but I think it’s safe to say that those problems would have been far worse absent Andrew’s efforts.

I look forward to seeing what Andrew, an accomplished barrister, does next. I hope the ECCC’s loss will prove to be another international organization’s gain.

Guest Post: Criminal Law Pays – Penal Law’s Contribution to China’s Economic Development

by Margaret K. Lewis

[Margaret K. Lewis is Associate Professor of Law at Seton Hall Law School]

The current trial of former high-ranking official Bo Xilai has shined the international spotlight on China’s criminal justice system. Headlines are simultaneously emphasizing the Chinese leadership’s concern that its rule is “vulnerable to an economic slowdown” after China’s meteoric rise to become the world’s second largest economy in terms of nominal GDP. What is lacking in both the media and academic literature is an in-depth discussion of the role criminal law has played in China’s stunning economic growth to date as well as the role it might play in the future. This inquiry is particularly timely on the heels of a once-a-decade leadership transition and as China’s ability to maintain a robust growth rate is facing rising skepticism.

As explained in more detail in my article here, not only has the PRC leadership historically used criminal law in service of economic ends but also, going forward, criminal law will likely play a multifaceted role in the leadership’s strategy to sustain growth during what promise to be turbulent times. The debate about the role of law in China’s development has thus far largely focused on the Washington Consensus’s support for a market economy’s need for clear and enforceable contract and property rights, often referred to as the “rights hypothesis.”

The law and development literature’s emphasis on empowering private actors by creating a neutral bureaucracy subject to objective judicial review has shifted the debate from the most basic function of law: creating order. And creating order starts with the coercive power of the state exercised through criminal law. Not only is criminal law a direct way for the government to deprive people of money, liberty, and life, it is cheaper and faster than building the civil and administrative law systems on which the rights hypothesis relies. If a these systems are not credible enough to deter activities that are detrimental to economic growth, the government can invoke the heavy hand of criminal law.

(more…)

Emerging Voices: Implied Conferrals as Consequences of ASEAN’s International Legal Personality

by Daniel Seah

[Daniel Seah is a PhD candidate at the Faculty of Laws, University College London.]

Has the Association of Southeast Asian Nations (ASEAN) finally had its own post-ontological moment?  No longer are we condemned to participate in the banality of questioning ASEAN’s legal existence as an international organization (IO). After all, since 2008, its international legal personality was expressly conferred in Article 3 of the ASEAN Charter, a constituent treaty.  Now is the time to ask a more useful question: what are the legal consequences that flow from ASEAN exercising its international legal personality? Nowhere is an answer to this question more clearly thrown into relief than in the conferral of competences by member States upon ASEAN, which is the focus of this post.

IOs are not created equal; there is a great variety in their functions and objectives. Establishing the objective international legal personalities in these IOs is the easy bit. More difficult are the issues that bear on how the legal personality has been exercised by an IO; and what legal consequences arise for the IO and its member States, as separate legal persons. Because an IO at international law is a legal person, it (or its bodies) can act on behalf of member States although some of these acts are not expressly conferred in the constituent treaty – I call these “implied conferrals”. The word “conferral” is not a legal term of art. It had been variously defined as “capacities” (CF Amerasinghe) to indicate the consequences of international legal personality; “international delegations” (Curtis Bradley & Judith Kelley) to explain a range of legal (and non-legal) decision-making exercised by IOs; or “competences” on which the European Union (EU) is authorised to act in particular areas such as the common commercial policy.

In this post, I instance the early practice of the ASEAN Intergovernmental Commission on Human Rights (AICHR) as an example of implied conferrals. (more…)

My Latest Paper on the Enforcement (or Lack Thereof) of ICSID Awards in China

by Julian Ku

Those international investment law nerds out there know that Article 54 of the ICSID Convention requires each state party to “recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.”  Many of you also probably know that China is one of the most enthusiastic players in the bilateral investment treaty system that often gives ICSID tribunals jurisdiction to issue awards in favor of investors against host governments.

My latest paper, “The Enforcement of ICSID Awards in the People’s Republic of China”, discusses how China (nearly 20 years after joining the ICSID Convention) has failed to adopt any domestic legal mechanism that would fulfill its article 54 obligations.  The only theory by which China could claim fulfillment is if Chinese courts gave the ICSID Convention “direct effect” within its domestic legal system.  I cast some doubts on that theory as well.  Here is the abstract, and comments, of course, are always welcome.

The People’s Republic of China is one of the most enthusiastic signatories of bilateral investment treaties that grant mandatory jurisdiction to the ICSID investment arbitration system. This essay considers the PRC’s domestic laws affecting the fulfillment of its ICSID Convention obligations to recognize and enforce ICSID awards. It notes that the PRC has failed to enact any specific legislation to comply with the ICSID Convention’s recognition and enforcement obligations, making its compliance with these obligations uncertain. It concludes that the only way that the PRC could claim to have fulfilled its treaty obligations is to declare that the ICSID Convention and related agreements have direct effect in its domestic law. The status of treaties within PRC law, however, remains uncertain and unsettled. For this reason, it is likely that a judicial interpretation from the Supreme People’s Court is necessary to guarantee enforcement of such an award within the PRC system. Without such an interpretation, it is highly doubtful that a PRC court would enforce an ICSID award, despite the ICSID Convention’s plain requirement that it do so.