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Arbitrating Bangladesh Labor Rights

by Roger Alford

BangladeshThis week 170 garment workers in Bangladesh died after the Rana Plaza building collapsed. A few months ago 112 garment workers in Bangladesh died after the Tazreen Fashions garment factory was destroyed by fire. Both tragedies were the result of inadequate fire and safety standards.

These tragedies could not have come at a worst time for major retailers that purchase garments from these factories. For months the International Labor Rights Forum and other labor rights groups have encouraged garment retailers to sign a binding agreement that would create a system of rigorous inspections, transparency and oversight. Thus far, they have had limited success, with only the parent company of Tommy Hilfiger and Calvin Klein brands and one German retailer signing on.

The agreement, the Bangladesh Fire and Building Safety Agreement, would establish a nine-member Oversight Committee, with four members appointed by Bangladesh and international labor groups, four members appointed by business representatives chosen by companies sourcing from Bangladesh, and one member mutually chosen by the other eight. Corporations that sign on to the MOU would help fund the costs of improving fire and safety standards in the factories where they source their supplies. As reported by the New York Times here,

The companies would bear the costs of improvements through higher prices for clothes and grants to workers who miss workdays because of renovations. The cost of the inspection program to each company would vary by the firm’s size, but it would be capped at $500,000 a year…. Labor groups say a roughly 3 percent annual increase in prices paid to the factories would be sufficient to make the needed improvements.

A key provision in the Agreement is binding arbitration. Specifically, the Agreement requires the Oversight Committee to develop a plan for the implementation and administration of the Bangladesh fire and safety program that includes “[a] process for binding and legally enforceable arbitration of disputes between parties to this MOU with respect to this MOU and the program….”

In other words, labor unions and participating corporations would sign a binding agreement to improve the working conditions of Bangladeshi garment workers, and any corporation that failed to comply with its funding or other obligations under the MOU could be the subject to international arbitration enforceable under the New York Convention in that corporation’s home country.

I have long advocated the use of international arbitration to address human rights concerns such as core labor rights. As I argued in “Arbitrating Human Rights“:

“[O]ne can anticipate that many corporations will increasingly include core human rights and environmental standards as contractual covenants in their international agreements. These contracts will also include grievance procedures, including arbitration, as a com­mon mechanism for dispute resolution. Serious noncompliance with substantive contractual obligations will trigger invocation of the dispute resolution provisions. Thus, by contracting for human rights as a substantive obligation and contracting for arbitration as a procedural guarantee, corporations throughout the globe can establish a firm basis for the promotion of human rights within their spheres of influence.”

In order to incentivize corporations that source their garments from Bangladesh, large wholesale and institutional buyers and IP holders, such as colleges and universities who purchase garments or license trademarks, can require these corporations to sign reasonable labor agreements such as the Bangladesh Fire and Building Safety Agreement as a condition in their agreements. In other words, upstream contracts can require downstream supply chain labor rights.

Tragic events like the death of 170 and 112 garment workers—a death toll that is over ninety times greater than that of the Boston marathon bombings—should be sufficient incentive to sign MOUs like that proposed in Bangladesh to improve the working conditions of garment workers who earn just over $1 a day.

Game On! ITLOS President Appoints Final 3 Members of Philippines-China Tribunal

by Julian Ku

Yesterday, President of the International Tribunal for the Law of the Sea, Shunji Yanai, announced the appointment of the final three members of the Annex VII UNCLOS tribunal.

International Tribunal on the Law of the Sea (ITLOS) President Shunji Yanai on April 24 transmitted a letter to Philippine Solicitor General Francis Jardeleza, head of the Philippine legal team on the arbitration case, informing Manila of the appointment of Mr. Jean-Pierre Cot (France), Mr. Chris Pinto (Sri Lanka), and Mr. Alfred Soons (The Netherlands.)

Yanai earlier appointed Mr. Stanislaw Pawlak (Poland) as the second member of the tribunal who will represent China in the proceedings. The Philippines, on the other hand, nominated Mr. Rudiger Wolfrum (Germany) to the tribunal.

I have to admit I am a bit surprised that President Yanai did not appoint any arbitrators from East Asia or Southeast Asia. As it turns out, the Annex VII tribunal will have four Europeans, three of whom are currently serving as judges on ITLOS.  Chris Pinto of Sri Lanka will be the only member of the tribunal from Asia (broadly defined).  I would have appointed a Chinese national and a Philippines national, which would be in keeping with the tradition of many other interstate arbitrations.

It turns out that I had the opportunity to meet Philippines Solicitor General Jardeleza, who is spearheading the Philippines arbitration team, just yesterday at an event sponsored by the U.S.-Asia Law Institute at New York University.  I got some great insights in to the strategy behind the Philippines’ decision to pursue arbitration, which I hope to share in a later post.  But for now we can say that the arbitration is going to happen, for sure.

If China continues to ignore the arbitration, it is worth keeping in mind that UNCLOS actually has a provision guiding tribunals in this situation.

Article 9 Default of appearance

If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.

(Emphasis Added).  So the tribunal has a legal duty to consider the jurisdictional issue seriously and to ensure that the Philippines’ claim is well-founded.  No “default” judgments can be issued here (Nor would that be in the interest of the Philippines anyway).

Japan Ponders Sending Its Island Disputes to the ICJ

by Julian Ku

The Asahi Shimbun is running a couple of interesting features on the International Court of Justice and Japan’s relationship with it.  One essay features interviews with Japan’s current and former members of the ICJ: President Owada and former vice-president Oda.  The other explores what might happen if Japan were to somehow send its disputes with China and Korea to the ICJ.

“Since we are already facing such an explosive situation, it would probably be good for Japan to take action and suggest that China file a claim–and then respond in court,” said Yoshio Otani, 73, an honorary professor at Hitotsubashi University.

To date, however, the Chinese side has made no move to file a claim unilaterally.

“The stances of both countries with regard to the Diaoyu (Senkaku) Islands are too far apart to be able to bring the problem to a third party, including to the ICJ, for resolution,” said Xinjun Zhang, 45, an associate professor at Tsinghua University in Beijing. “The issue of territory, even domestically, is intertwined with ethnic pride. It is a very sensitive matter. Currently, it would be better to think about how to manage the issue rather than try to resolve it.”

I am not sure I agree with Prof. Zhang that the stances of the two countries are “too far apart” to go to a third party, since that is kind of always the case in these kinds of disputes.  But I do agree that it is hard to imagine the China-Japan dispute going to the ICJ.

Having said that, it might be smart politics for Japan to announce its willingness to take the Diaoyutai/Senkaku disputes to the ICJ, and put the onus on China to reject the offer. Japan is already becoming ICJ-savvy in the upcoming Australia Whaling case (hearing finally scheduled for June), they might feel like the ICJ is a good forum for them.   In our panel last week at ASIL, Stephanie Kleine-Ahlbrandt suggested that that Japan had already privately made such an offer, and had been turned down.  I wonder if it is now time for Japan to go public with this offer.  Then again, maybe it should sit still and wait and see how the Philippines arbitration turns out, since China has not so suffered any serious damage from their non-response to that claim.

Should the U.S. Bomb North Korea Before It Launches its Missile?

by Julian Ku

Apparently, the answer is yes, according to Professor Jeremi Suri of the University of Texas writing in the New York Times:

The Korean crisis has now become a strategic threat to America’s core national interests. The best option is to destroy the North Korean missile on the ground before it is launched. The United States should use a precise airstrike to render the missile and its mobile launcher inoperable.

President Obama should state clearly and forthrightly that this is an act of self-defense in response to explicit threats from North Korea and clear evidence of a prepared weapon. He should give the leaders of South Korea, Japan, China and Taiwan advance notice before acting. And he should explain that this is a limited defensive strike on a military target — an operation that poses no threat to civilians — and that America does not intend to bring about regime change. The purpose is to neutralize a clear and present danger. That is all.

I am highly dubious about this action as a policy matter, but I think that such a strike would be legal as a “preemptive” act of self-defense under international law.  Even for those wedded to the possibly outdated Caroline principle, I think the various statements by North Korea (including denouncing the armistice and making specific threats against South Korea and the United States) and its act of moving its missile into launch position would satisfy the Caroline’s imminence requirement.  I think a surgical strike that targeted only the missile would satisfy the proportionality requirement.

I am somewhat skeptical of Prof. Suri’s assurance that this will actually improve the security situation in Korea and Secretary Kerry seems to be going in the opposite direction.  But I do think he is right in putting this option on the table.   In any event, legal concerns should not constrain U.S. actions here.

China and Sovereignty Under International Law

by Julian Ku

As regular readers of this blog might have noticed, I have become more and more interested China and its engagement with international law issues.   Last year, I proposed to the ASIL Planning Committee that we put together a panel of leading U.S. China law scholars.  But the ASIL organizers pushed back and put together a much more diverse group than I had suggested, which included a U.S. China scholar like Jacques Delisle from Penn, but also Chinese international law scholars like Bingbing Jia of Tsinghua and then added a nice dose of on-the-ground policy analysis from Stephanie Kleine-Ahlbrandt of the International Crisis Group.  It ended up being a terrific mix of style, topics, and expertise.  We didn’t rate a “livestream”, but I wanted to share a few thoughts for our readers on what I think is an important topic. I am not going to attempt to summarize their comments, but simply offer some of my reactions to their key points.

The idea of the panel (at least to me) was to consider whether the “rise of China” in global affairs has changed much about how China interacts with international law. In my crude formulation, the question is now less about what “international law does to China” but more what “China will do to international law.”

Both of the lawyer-panelists (Jia and Delisle) focused on “sovereignty” as the most important principle guiding China’s understanding and engagement with international law.

Whale Wars Update: The ICJ Is Not Exactly Rushing to Issue a Judgment

by Julian Ku

I was struck by this line from an editorial in an Australian paper about the latest clashes between Sea Shepherd (e.g. the Ninth Circuit’s “pirates”) and Japanese whalers:

[T]hat the International Court of Justice is expected to hear Australia’s case to shut down the Antarctic hunt later this year.

Three years after the case began,  this hearing can’t come soon enough.

I agree.  The ICJ judgment will not come down anytime before the spring of 2014.  I know this is a complicated case but the timetable for this ICJ decision is really unacceptable.  The original application was filed in 2010. If everyone is lucky, a decision will be issued a year from now, four years after the original application. (It could be longer).  (I have been beating this dead horse for years, but I think I am still right about it).

No doubt part of the problem is that the parties (Australia and Japan) have not sought to expedite this process.  The original scheduling order gave each party ten months to make their written submissions.  So Australia filed their submission in May 2011, and Japan had until March 2012 to file their response.
I suppose part of the idea behind this slow process is to give the dispute time to cool and perhaps even to resolve itself.  But in this case, the dispute has really only intensified. Delay is not really serving anyone’s purpose here.

Game On! ITLoS President Appoints Second Arbitrator in Philippines-China Arbitration

by Julian Ku

Just in case there was any doubt, the Philippines-China arbitration over the South China Sea will go forward.  International Tribunal of the Law of the Sea President Shunji Yanai has appointed a second arbitrator.

The [Philippines] Department of Foreign Affairs (DFA) confirmed on Monday that the Itlos president, Judge Shunji Yanai, appointed Polish Itlos Judge Stanislaw Pawlak to the panel last week, leaving only three more slots to be filled in the tribunal.

Pawlak will join the panel with German Judge Rudiger Wolfrum, the arbiter appointed by the Philippines when it announced its arbitration bid in January.

The Polish judge’s appointment is the first for Yanai, who took on the task of composing the arbitral panel after China announced its rejection of the proceedings.

As I discussed here earlier, China’s refusal to appoint an arbitrator does not in any way divest the arbitral tribunal of jurisdiction under the Annex VII of UNCLOS.  President Yanai now will appoint the remaining three arbitrators, as he would do whether or not China had acted to appoint an arbitrator.

The interesting question is what China will do now.  It seems likely that they will continue to ignore the arbitration and question its propriety.  But China can no longer claim that the arbitration cannot proceed without China’s participation.  This article from the reliably hawkish state-owned Global Times offers a pretty clear-eyed analysis, correctly noting that UNCLOS itself grants the ITLOS arbitral tribunal the power to determine its own jurisdiction, and that UNCLOS also specifies the procedure for appointing arbitrators.  It also notes that China’s position is going to be somewhat more difficult, and that the Philippines is using this legal proceeding to level the playing field somewhat in this maritime dispute.

The nationality of President Shunji Yanai has not gone unnoticed.  As this news broadcast puts it, “Expert Says Nationality of ITLoS President Detrimental to China”.  The broadcast (full of ominous shots of the Japanese flags (interspersed with ominous shots of the U.S. flag since the US is often believed to be behind the Philippines litigation) also notes that Japanese nationals have also acquired other important positions within UNCLOS.  If things start to go south for China in UNCLOS institutions, expect this little factoid about Japan’s nefarious control of UNCLOS institutions to pop up more often in the Chinese media.

China still has the option to show up to contest jurisdiction once the tribunal is constituted. I think they could still do that, and that they would have a plausible case against jurisdiction here. But it is seems that China is committed to its path of rejecting the arbitration. Indeed, if the tribunal finds they have no jurisdiction, China wins.  But if the tribunal rules it can hear the case, expect the denunciations of the Japanese- appointed one-sided illegal tribunal to start flowing.

How Microfinance Transformed a Filipino Mountain Village

by Roger Alford

“Three years ago I could never have dreamed that we would be selling our tomatoes directly to the restaurants in Manila,” said Johnny Rola. Just a few years ago the poor farmers in this mountain village in northern Philippines had little hope. They would grow a few staple crops and sell it at the local farmers market. They were at the whim of the spot market prices set by the local wholesalers at the village below the mountain, and were struggling to survive.Sitio Mapita 3

Three years ago they were approached by a local microfinance institution, Gulf Bank in Lingayen, about the possibility of selling their produce directly to the Jollibee restaurant chain in Manila, a major food outlet in the Philippines. The major banks won’t lend to the local farmers who have no credit history, collateral, or crop insurance. But microfinance institutions are now filling the gap. In partnership with the National Livelihood Development Corporation, a Philippine government entity, many farmers today have access to microcredit. For someone like Johnny Rola, this development is a godsend. “I’ve been a farmer for thirty years,” said Rola, “and the past three years have been the best years of my life.”

In 2011 Rola joined with forty other local farmers to establish the Sitio Mapita High Value Crop Growers Association as a farming collective. Gulf Bank now loans Sitio Mapita money to buy seeds and fertilizer, and the farmers sell their produce directly to Jollibee restaurants. At harvest time, the farmers deliver the produce to the restaurant chain at a guaranteed price, and Jollibee repays the Gulf Bank microloan and deposits the profits to Sitio Mapita’s savings account.

Together with Catholic Relief Services, Gulf Bank is training the farmers of Sitio Mapita how to transform themselves from poor farmers to budding entrepreneurs. These indigenous farmers have no electricity and no running water. To communicate with the outside world they walk thirty minutes up the mountain to get cell phone reception. So I was amazed when I arrived at the village meeting hall to find spreadsheets with handwritten monthly commodities prices, balance sheets, revenue projections, and production targets posted on the walls on large brown sheets of paper. These farmers have a business plan and big dreams.Mapita 4

“At sunset we used to go to sleep,” said Margarita Rola. “Now we are planning for the future.” They plan to use their profits to improve their lives in ways we take for granted. They dream of electricity, better irrigation, refrigerated trucks, even a high school for their children, who today must choose between becoming farmers after sixth grade or, for the lucky ones, boarding at a high school in a nearby town.

I’m in the Philippines as part of Notre Dame’s award-winning business school class entitled, Business on the Front Lines. The class has around thirty business, law, and peace studies students who focus for a semester on four specific case studies of social entrepreneurship. After weeks of study, the students travel during spring break to the countries and do field analysis. I’m here with six students, and there are three other teams right now in Nicaragua, Rwanda, and Sierra Leone. You can read about their exploits here. We work with Catholic Relief Services, which is one of the largest relief agencies in the world. The goal is not simply education. We are conducting due diligence to recommend how millions in venture philanthropy can best be utilized.Sitio Mapita 2

As we toured the farms, one could feel the pride these farmers felt at what they had accomplished in just three years. Graduate students from the United States were coming to study what these poor farmers were doing to see if their business model might be replicated elsewhere.

The success of farming collectives like Sitio Mapita has garnered attention around the Philippines. Other farmers want in on the action, relishing the idea of microfinance providing a way to reach institutional buyers. Major corporations are taking notice too. Next month Sitio Mapita will contract with Rocky Mountain Coffee to begin growing coffee for sale throughout the Philippines. Coffee has a four-year growing cycle and the start-up costs are large by their standards, so it is a major development in their lives.

The proudest moment of Johnny Rola’s life was when he went to Manila last year and spoke to an audience of one hundred bankers, farmers, and politicians. “I even shook hands with a senator,” he beamed. When I asked him if he went to a Jollibee restaurant in Manila to try one of the hamburgers with his tomatoes in it, he said with a big grin, “Yes! It was quite good.”

Revive Letters of Marque and Reprisal to Launch Cyber-Attacks Against China?

by Julian Ku

Dan Blumenthal of AEI has a thoughtful piece in Foreign Policy on different tactics the U.S. could take to “win a cyberwar” with China. I think it is more about how the U.S. should “fight” the cyberwar with China and other governments that are going to use cyber-attacks against US companies and government entities.  Still, what caught my eye are two interesting legal proposals.

1) The US could amend the Foreign Sovereign Immunities Act to permit lawsuits against governments and government entities (like China’s) for cyberattacks and cybertheft.  I suppose the idea would be that a US company could sue the infamous People’s Liberation Army unit that is allegedly sponsoring many of the cyber attacks against the U.S.  I think this is a not very good  strategy since such litigation for state sponsors of terrorism have not gone very well.  And it would seem to require the US to open the doors to litigation against a foreign sovereign, which will certainly invite retaliation against the US government and US companies doing business with China. So I assume no such lawsuits would ever be brought, or almost never would be brought.  Still, worth thinking about.

2) Here is the hot idea:  Issuing letters of marque and reprisal against cyberattackers.  This idea has been developed by GMU lawprof Jeremy Rabkin and Ariel Rabkin here. I think as a policy matter, the idea of bringing private non-governmental resources into play is really important, since they have much of the technical expertise and suffer the most damage from cyberattacks.  On the other hand, officially sanctioning private warfare via “cyber-privateers” seems more trouble than its worth.  You are responsible for the damage they wreak, but you don’t actually control them very well since they are not in your chain of command.  And, oh yes, other countries could do this even better than the U.S. could.  Except they simply deny their relationship with the “private”attackers.

And I also think that international law would have something to say about this.  If a state of armed conflict existed, than it is easier to imagine unleashing a private band of cyberwarriors.  But absent that, I don’t think the cyber-privateers makes much legal or policy sense.  How could the US legitimately sanction private attacks against a foreign government absent a state of armed conflict without having to treat all foreign private attacks against it as “armed attacks” as well?

Still, I like the idea of expanding the universe of U.S. expertise and ability in the cyberwars, taking an offensive rather than a defensive approach, and thinking of new ways to do so. I am just not sure reviving private warfare will necessarily do that.

Discussing International Law in China’s Social Media

by Julian Ku

As part of my new research interest in China and its relationship with the international legal system, I opened a Sina Weibo account a couple of weeks ago. And it has been quite an adventure.

Weibo is China’s version of Twitter and Facebook.  Since both Twitter and Facebook are blocked within China, Weibo is the main social media platform for users within China.  And use it they do.  Although the data is somewhat unreliable, it is estimated Weibo has nearly 500 million registered users (that’s not a typo).  As a point of comparison, Twitter has about 175 million registered users worldwide and Facebook has about 1 billion.  There are some questions about whether many of the registered Weibo users are spam bots, but there is no question that Weibo has an enormous usage within China.

What fascinates me about Weibo is that it seems to facilitate more interaction and discussion of public affairs within China than most Chinese media organs do.  Perhaps realizing this, the United Nations has opened an extremely active Weibo account.  The UN Weibo has a mere…3.5 million followers (UN Twitter has “only” 1.3 million followers).  Even accounting for zombie bots, that’s a lot of followers in just one country.

And even better than the number of followers it the discussion the UN has used Weibo to facilitate  discussions of interesting and even sensitive international subjects.  For instance, today, the UN account posted a link to an address by Chinese representative Liu Zhenmin  to the UN Human Rights Council.  In that address, the Chinese delegate appeared to give China’s standard party-line against countries using “human rights” as an excuse to interfere in nation’s domestic affairs and to advance political agendas.  That posting drew hundreds of often tart comments from Chinese Weibo users. Many were critical of their own delegate:   “He does not speak for me,” said one commenter simply.  ”What about [Liu Xiaobo] sentenced to prison for 12 years?” said another.  Or another simply quoted the line : “We know they are lying, and they know we know they are lying, and we know they know we know they are lying…”  So kudos to the UN folks running their Weibo account.  And could some of them shift over to running their Twitter account?

Of course, not all is rosy for intellectual and expressive freedom in China’s social media.  When, for instance, I tried to post a link to my Opinio Juris post earlier this week about calls within China to ratify the International Covenant on Civil and Political Rights, I received a message from Weibo explaining that my post had been deleted.  As I later learned, many (but not all) posts about China ratifying the ICCPR had been deleted at the behest of the ever-present Chinese censors.  Which is ironic because my post actually was skeptical about the value of ratifying the ICCPR.

If it weren’t for those pesky censors (and my still sketchy Chinese writing skills), I actually would prefer Weibo to Twitter or Facebook.  It’s easier to use, and has more amusing emoticons :-D (Although I do wonder why Weibo asks me to list my blood type when registering). China seems to have the best of both worlds: a first class social media platform, and the power to control its usage when it seems to touch on sensitive subjects.  I wonder if this is sustainable, but it sure looks pretty strong so far.

Whale Wars, Round II! U.S. Court of Appeals Issues Preliminary Injunction Against Sea Shepherd “Pirates”

by Julian Ku

In a tartly worded opinion, the U.S. Court of Appeals for the Ninth Circuit has reversed a lower court and granted a group representing Japanese whalers a preliminary injunction against the protest activities of Sea Shepherd.  Here is Judge Alex Kozinski’s  instantly quotable opening to the opinion:

You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

Interestingly, the Cetacean Institute (the group representing Japanese whalers) had sued Sea Shepherd under the Alien Tort Statute.  In particular, Cetacean alleged that the Sea Shepherd groups had engaged in “piracy” within the meaning of customary international law, and the Court (as you can see above) agreed with them.

The Ninth Circuit opinion doesn’t seem troubled by tricky questions such as whether piracy is one of the causes of action recognized by the Alien Tort Statute after Sosa v. Alvarez Machain, but given the language in that opinion, I suppose it is safe to assume piracy is indeed an acceptable ATS action.  I wonder more about Cetacean’s basis for a preliminary injunction pursuant to violations of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, the Convention on the International Regulations for Preventing Collision at Sea.  I am going to assume the Court found the former two treaties self-executing, but a little analysis here would have been helpful.

I’m no expert on the definition of piracy, so take this with a grain of salt. I am with the Court on the view that the “violence” element was satisfied, but I am less confident of the Court’s conclusion that “private ends” needed to satisfy an element of piracy includes goals other than financial enrichment.  This seems a reasonable interpretation in the context of this case, but it is also an obviously reviewable and debatable issue on appeal to the full en banc court.

So this case is far from the last word. Sea Shepherd has made clear that they will appeal this order and in any event ignore the U.S. court’s order on the theory that Sea Shepherd (Australia) is unconnected with the defendants in the U.S. proceeding. The Court of Appeals here seems to have ordered the removal of the lower court judge from this case and stands ready to issue orders to further enforce its preliminary injunction.   Whale Wars will go on.

International Law and China’s Domestic Reform – A Good Mix or Self-Defeating?

by Julian Ku

Some leading Chinese scholars and prominent Chinese activists have been circulating a letter on Chinese social media calling for the National People’s Congress (China’s legislature) to ratify the International Covenant on Civil and Political Rights (ICCPR).   Here is an excerpt from the letter, which is carefully worded not to challenge the authority or the accomplishments of the current government.

2. Immediate ratification of the International Covenant on Civil and Political Rights will honor the solemn pledge of the Chinese government, satisfy the fondest hopes of the Chinese people, and demonstrate China’s commitment to be a responsible world power.

When the United Nations passed the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights in 1966, it called on all nations to see both treaties as part of a whole, signing and ratifying both together. As of November 1, 2010, 167 of the 193 United Nations member countries had formally joined the International Covenant on Civil and Political Rights. In 2001, China ratified the International Covenant on Economic, Social and Cultural Rights, which has been referred to as the “second generation of human rights.” But today, 15 years after our country signed the International Covenant on Civil and Political Rights in 1998, it has still not ratified this treaty, which is regarded as the “first generation of human rights.” China’s government has placed its emphasis on the gradual improvement of China’s existing legal system in advance of ratification, so that it can accommodate the demands and various responsibilities of the treaty. However, the gap between the signing of human rights treaties and their ratification must still be kept within the realm of reason, in order to promote further progress on civil rights and political rights, and in order to avoid unnecessary conjecture from the international community.

As a Permanent Member of the United Nations Security Council, China has always been an active initiator and participant in the International Bill of Human Rights. China’s government played an important role in the formulation of the Universal Declaration of Human Rights (UDHR). International human rights standards are therefore not imported products but in fact include the achievements of Chinese culture and the Chinese people. The signing of the International Covenant on Civil and Political Rights 15 years ago demonstrated even more our country’s serious commitment to the protection of basic human rights as a responsible world power. Afterwards, both President Hu Jintao and Premier Wen Jiabao said openly on numerous occasions both at home and overseas that China would immediately take the legal steps to ratify the treaty once the conditions were right. In the beginning of 2008, more than 10,000 Chinese citizens signed a call for the ratification of the International Covenant on Civil and Political Rights. And so there is no longer any need to vacillate. In order to adapt to trends in human rights development, live up to our government’s pledges and answer the demands of the people, in order to behave in a manner consistent with a major power, we must join the treaty without hesitation, with a positive and decisive attitude.

As stirring as this letter is, I am doubtful that China’s adherence, or non-adherence to the ICCPR would make a big difference in advancing reform within China.  China is already a party to key human rights treaties, such as the Convention Against Torture and the Convention Against Genocide, but it is hard to tell whether being party to those treaties has made a big policy difference within China.  Moreover, the Chinese Constitution already guarantees many of the key rights in the ICCPR, but those rights are still rarely protected in China, and not all protected under Chinese law.

The larger question for international lawyers is whether human rights covenants like the ICCPR can or should be a vehicle for advancing a domestic political reform agenda.  I haven’t thought about this question enough, but I am skeptical that such treaties can play a big role and I’ve seen no empirical data that suggests it does make a difference one way or the other. (If I’m missing something, please feel free to post below). Indeed, such treaties can often be counterproductive to domestic reformers who lose some credibility by being too closely associated with foreign and international powers.

Don’t get me wrong. I’m all for advancing human rights and political reform within China. I just have doubts as to whether international human rights law is a useful vehicle for advancing this agenda.