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Asia-Pacific

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.

Japan’s New Cybersecurity Strategy

by Duncan Hollis

The tendency in the United States is to think about cyberthreats exclusively in terms of US interests (a tendency I’ve certainly followed on more than one occasion).  Hence, the extended attention to questions of whether and how Congress should regulate cybersecurity.  But, of course, cyberspace — and cyberthreats — are global.  Every nation is now faced with developing a strategy for responding to these threats, whether through the deployment of government resources, private industry, or public-private partnerships.  So, I read with interest Hitachi’s English-language summary of Japan’s new Cybersecurity Strategy, which was adopted by Japan’s Information Policy Council earlier this week (you can read the policy itself here in Japanese).  Here are some highlights:

  • Japan (like most other States) has moved away from using “information” as the adjective to describe the issue; so it’s now cybersecurity, not information security
  • Japan’s National Information Security Center will be given more authority to play a “command” role in dealing with cyberthreats
  • Japan will revisit what counts as “critical infrastructure” to include targets, which, if attacked, would have significant socioeconomic effects or impact civilians more broadly.
  • Japan will increase consultation with the private sector and pursue more information sharing.
  • There will be a “Cyber Clean Day” to raise user-awareness of cyberthreats and ways to combat them.
  • A Cyber Defense Unit will be established within Japan’s Self Defense Forces with responsibility for countering cyber-attacks that constitute part of armed attacks;
  • In terms of international relations, the Japanese government intends to continue to study how international law, including international humanitarian law, is applicable to cyberspace; establish confidence-building to avoid any escalation of tensions; and prioritize cooperation with the United States.

Japan is truly a high-tech culture, but I was surprised during my Spring semester there, how little attention cyberthreats have received; indeed, the most visible “cyberthreat” has been anonymous users making threats via the Internet (this was the dominant story line this past Spring on the cyber front).  I saw much less attention to the threats posed by large-scale DDoS attacks, let alone infiltration of critical infrastructure by Advanced Persistent Threats.  So, it is a welcome development to see the Japanese government moving forward on these issues.  That said, I don’t see much in the way of “new” ideas here; almost everything Japan’s government is talking about doing there is on the table here in the United States (with the possible exception of a “Cyber Clean” day, which I attribute to the fact that the Japanese populace is much more willing to undertake collective enterprises than the U.S. citizenry). Still, I’m very interested to see how Japan approaches the question of cyberattacks and the use of force, especially given its Constitutional structure with respect to military activities.  Will they adopt Harold Koh’s mutli-factored, contextualized standard?  Or, will they be one of the first States to accept the Tallinn Manual’s effects-based approach?  Or, is there some other way they could approach the issue?  Comments welcome, especially from those readers who can offer more insights into how the Japanese government is thinking about these topics.

Hat Tip:  Mihoko Matsubara

The NSA Leaker’s Dumb Choice of Refuge: Hong Kong

by Julian Ku

There has been a rightful flurry of media interest in the saga of Edward Snowden, the U.S. government contractor who is the apparent source of the leaks about the U.S. National Security Program’s data mining surveillance program.  One area of focus is Snowden’s decision to take refuge in Hong Kong from a possible prosecution by the U.S. government.

As I noted here in my comments to this Foreign Policy post, this is an odd, borderline dumb, choice of refuge.  As everyone now realizes, the U.S. has a special extradition agreement with Hong Kong, although it does not have one in China.  This agreement looks pretty similar to other U.S. extradition agreements, and it has been something that the U.S. government and the HK governments valued so highly that they executed it in 1997, after HK’s return to Chinese sovereignty, to ensure continued cooperation in these sorts of matters.

If Snowden was really afraid of extradition, he should have gone to a place like Ecuador, which has shown it does not mind angering the U.S.  Or he could have wandered across the border into China, which doesn’t have an extradition treaty.  But in choosing Hong Kong, he exposes himself to a real possibility of an extradition proceeding without any guarantee of his prevailing.  And he launches a zillion conspiracy theories about his real intentions: is he secretly planning to turn himself into the Chinese government?

What he will get, I suppose, is the maximum level of publicity he could desire and a level of celebrity Julian Assange will be envious of.  Which is probably what he wants.

China and the Philippines Take Their “Battle” Over South China Sea to Military Conference

by Julian Ku

The indefatigable Benjamin Wittes at Lawfare has a short post describing a lively exchange between the Chinese and Filipino representatives at MILSOPS, an invitation-only off-the-record meeting of top military officials from the Asia-Pacific region, about China’s nine-dash-line claim to the South China Sea.

Apparently, this has been an ongoing debate at this annual conference. Last year, the Chinese representative presented this set of powerpoint slides usefully entitled:  “China has indisputable sovereignty over the islands in the South China Sea: Understanding the South China Sea issue from the angle of law”.  (The title says it all). Ben says he is somewhat constrained in his reporting since the conference is off-the-record, but hopefully he can get participants to write more about their exchange.

The one thing that is a constant in these slides and from other articles from China is that Chinese officials are using their claim to sovereignty over the “Nansha” islands as the basis for their claims of “indisputable sovereignty.”  And China does indeed have plausible sovereignty claims to many of the islands in the South China Sea, and those sovereignty claims are of course not subject to UNCLOS arbitration.  But no one in China has really offered a particularly detailed explanation of how the sovereignty claims to the islands can justify the “nine-dash line” (see my earlier post here describing the nine-dash line claim) which goes well beyond a 12 mile territorial sea or the 200 mile exclusive economic zone. Thus, even if China had sovereignty over every random rock in the South China Sea, it can’t quite support the nine-dash line.  I wish Chinese scholars would offer a more comprehensive explanation or defense of the nine-dash line, as oppose to muddying the issue by raising their island sovereignty claims.  It is the nine-dash line that makes China’s claims unusual, and particularly dangerous.  And, oddly, it overshadows and weakens China’s much better and more legally supportable claims to particular South China Sea islands.

The First Serious Defense of China’s Position on the Philippines UNCLOS Arbitration

by Julian Ku

Professor Stefan Talmon of the University of Bonn and St. Anne’s College in Oxford offers one of the first serious attempts to defend China’s position on the UNCLOS arbitration brought by the Philippines.  In an essay published by the Global Times, China’s hawkish state-owned daily paper, Professor Talmon argues that all of the Philippines’ claims against China fall outside of the jurisdiction of the UNCLOS arbitral tribunal.

For example, the claim that China’s maritime claims in the South China Sea based on the so-called nine-dash line are invalid, the claim that China has unlawfully claimed maritime entitlements beyond 12 nautical miles around certain insular features and has prevented Philippine vessels from fishing in the waters adjacent to those features, and the claim that China has unlawfully interfered with the exercise by the Philippines of its right to navigation and other rights cannot be decided without touching upon China’s claim to historic title and rights within the area of the nine-dash line.

In addition, any measures taken by China against the Philippine vessels may also be subject to the “law enforcement activities” exception with regard to fisheries matters or may be excluded as an exercise of China’s sovereign rights and jurisdiction provided by UNCLOS.

The claim that China unlawfully occupies certain low-tide elevations in the South China Sea cannot be addressed without dealing with the question of sovereignty or other rights over these insular land territories.

Finally, declarations that certain submerged features form part of the continental shelf of the Philippines, that China has unlawfully exploited the living and non-living resources in the Philippines’ exclusive economic zone and continental shelf, and that China has interfered with the Philippines’ right to navigation and other rights in areas within and beyond 200 nautical miles of the Philippines cannot be made without engaging in sea boundary delimitations.

I have to admit I am not very persuaded by this analysis. In Prof. Talmon’s defense, the essay is very short and not an attempt to provide a deep legal analysis of the problem.  But the idea that any challenge to the nine-dash line is excluded from UNCLOS arbitration is hardly obvious to me, since the basis of China’s nine-dash line is very murky anyway. It is not an historic bay.  I suppose it could be an “historic title” within the meaning of Article 298, but that is hardly obvious. Under Prof. Talmon’s reading, any claim of historic title, even if it undermines all of the other principles of UNCLOS, are outside the jurisdiction of the UNCLOS tribunal.

Similarly, when the Philippines argues that something is a “rock” and not an “island” under the definition of UNCLOS, I don’t see how that requires a sea boundary determination?

Most importantly, I can’t see how Prof. Talmon can avoid the question of why China is not even bothering to make these jurisdictional arguments in the UNCLOS tribunal. It is an oddly disrespectful move, to say the least, for China to essentially boycott the tribunal. Does Prof. Talmon think the Philippines case is so weak that ignoring the arbitration is justified?

Still, it is worth exploring these questions, since the arbitral tribunal will likely do so. I would hope Prof. Talmon has a longer version of his views posted somewhere, and if not, he is welcome to do so here at any time!