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Guest Post: The South China Sea Arbitral Tribunal Finds that A White Horse Is Not a Horse–A Delimitation Exception Perspective

by Andrew Gou

[Andrew Gou is an Associate Professor at Jilin University.]

Once upon a time, a man was traveling with a white horse. They were stopped at the entrance to town, for the town had a “no horses allowed” rule. The man argued that a white horse was not a horse, for white horse was a new concept defined by both the concepts of white and of horse, and thus different from the original concept of horse. However, the gatekeeper insisted that the white horse was still a horse and should consequently be excluded from the town. The white horse story highlights the importance of the identification of the subject matter to the application of rules. Even for such simple rule as “no horse allowed”, identifying the true subject matter is inevitable.

A key aspect of the ongoing South China Sea arbitration is to identify whether the submissions fall within the delimitation exception in the UNCLOS and China’s declaration under the exception: China argues yes, while the Philippines disagrees. On 29 October, the Arbitral Tribunal delivered its award on jurisdiction. Issues relating to delimitation exception are addressed briefly in paragraphs 155-157. The Tribunal states that it is “not convinced” by China; it considers that a dispute concerning maritime entitlement is distinct from a dispute concerning the delimitation; the Philippines has not requested the Tribunal to delimit, and the Tribunal will not effect the delimitation of any boundary. Then in paragraphs 397-412 titled “[t]he Tribunal’s conclusions on its jurisdiction”, the Tribunal concludes that 14 submissions of the Philippines do not concern maritime delimitation.

I respectfully disagree with the award. In particular, I disagree with the manners in which the Tribunal reaches its conclusions on the delimitation exception.

Basic understanding of the delimitation exception

Article 298.1(a) of the UNCLOS provides that a State may declare that it does not accept compulsory procedures with respect to “disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitations”. In a recent article of mine (paras. 7-37), I tried to interpret the exception in accordance with Article 31 of the VCLT. Some basic findings are as follows:

First, delimitation is a process, and the term delimitation in the exception shall be understood as such. “The task of delimitation consists in resolving the overlapping claims” (Maritime Delimitation in the Black Sea, para. 77), which indicates that delimitation is a process of identifying, weighing and effecting competing claims, not only the final determination of the boundary line.

Second, according to their ordinary meaning, the good faith principle and relevant case law, the terms relating to and concerning in the language of the delimitation exception shall be interpreted non-restrictively. They carry the meaning of on and connected with, or having a bearing on.

Thus, the delimitation exception covers not only disputes on the determination of sea boundaries but also disputes having a bearing on the entire delimitation process. With an Article 298.1(a) declaration, the UNCLOS compulsory procedures shall not apply to those disputes.

The Philippines has wrongly specified the nature of the disputes

My article (paras. 73-100) also examines the Philippines’ submissions, and concludes that each of them has a bearing on delimitation and is excluded from arbitration by the declaration of China.

For instance, the Philippines asks the Tribunal to declare that China’s maritime claims based on its “nine dash line” are inconsistent with the UNCLOS and therefore invalid (award, paras. 4, 99). Apparently the Philippines is of the view that the line represents China’s maritime claims. If the view is correct, then disputes on the line are typically disputes on overlapping claims: they arose only when the Philippines raised maritime claims overlapping with China’s; they could be settled only in the process of delimitation. If the Philippines’ view is not correct, then it must be proved that there exists a dispute concerning the interpretation and application of the UNCLOS; otherwise, the Tribunal will have no jurisdiction. (more…)

Guest Post: Is the Execution of Collaborators a War Crime under the Rome Statute? (Part II)

by Shane Darcy

[Shane Darcy is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway and the author of Judges, Law and War; the Judicial Development of International Humanitarian Law (Cambridge, 2014). This is the second part of a two-part series. The first post can be found here.]

Following on from the first part of this essay, which introduced the consideration given by the United Nations Commission of Inquiry into the 2014 Gaza Conflict to the ill-treatment and execution of Palestinians alleged to have collaborated with Israel, this second part looks at the practice in light of the war crimes provisions of the Rome Statute of the International Criminal Court.

Grave Breaches of the 1949 Geneva Conventions

Not all of the war crimes provisions of the Rome Statute are defined in relation the adverse party, particularly those applying in non-international armed conflicts, although this at times implicit, most notably with regard to grave breaches of the 1949 Geneva Conventions. Grave breaches under Article 8 of the Rome Statute can only arise if committed against persons protected by those treaties – under the Fourth Geneva Convention, protected persons are considered to be those who find themselves in the hands of a party to the conflict or Occupying Power of which they are not nationals. The ICTY famously sought to dilute this nationality requirement in Tadić by emphasising allegiance, and the ICC’s Elements of Crimes can be considered to partially reflect this approach when they state that in relation to the grave breach of wilful killing, a perpetrator need only know that “the victim belonged to an adverse party to the conflict”. The Pre-Trial Chamber in Lubanga applied the Tadić approach to nationality, albeit in the context of interpreting “national armed forces” in the context of recruiting child soldiers, rather than protected persons under the Fourth Geneva Convention.

The Commission of Inquiry on the 2014 Gaza Conflict concurred with prevailing international opinion that Gaza remains occupied territory and that the laws of occupation, including the Fourth Geneva Convention, continue to apply. But Palestinians detained by the authorities in Gaza would generally not be considered as protected persons under the Fourth Geneva Convention, as they do not belong to an adverse party to the conflict. Those that collaborate with Israel could be considered to have somehow switched sides and changed their allegiance. Would their actions have to have amounted to direct participation in hostilities, such as by relaying the location of Hamas fighters or weapons, or would more minor forms of collaboration suffice, such as relaying messages or money? Treating cooperation with an opposing force as a switching of allegiance could lead to the absurd situation where protected person status might arise for those that voluntarily engaged in collaboration, but not those coerced into doing so. Assessing this on an individual basis would be extremely difficult given the secrecy surrounding these practices.

The Gaza Commission noted in a footnote the overlap and distinction between war crimes in international armed conflict and non-international armed conflicts under Article 8 of the Rome Statute, but it did not apply the distinctions in any great detail in its analysis. It refrained from classifying the hostilities between Israel and Palestinian armed groups as amounting to either an international or non-international armed conflict, claiming that there is “very little substantive difference” in the customary international law applicable to both when it comes to the rules governing conduct of hostilities. Debate exists as to the status of the hostilities between Israel and Palestinian armed groups – the ICC Prosecutor has previously considered the situation in Gaza “within the framework of an international armed conflict”. Perhaps the strictures of the grave breaches regime might be softened by reference to the protections of Article 75 of Additional Protocol I, which insists on humane treatment and fair trial rights for any person in the power of a party to the conflict. The Court has said that it will only apply “the established principles of the international law of armed conflict” as referred to in Article 21, where there is a lacuna in the Statute, Elements of Crimes or Rules.

Common Article 3 War Crimes

The Gaza Commission used Common Article 3 in assessing the lawfulness of the treatment of civilians and those hors de combat by Palestinian armed groups. The “protected person” conundrum under grave breaches does not arise for war crimes based on Common Article 3 as set out in Article 8(2)(c) of the Rome Statute, but such crimes must have occurred in an armed conflict “not of an international character”. It is unlikely that an armed conflict can be said to have existed at the time between Palestinian armed groups and the Palestinian Authority forces, even though some of the executions and cases of ill-treatment observed by the Commission “were directed against persons who had links with Fatah and the Palestinian authorities’ security forces and may have been acts of revenge”. If the hostilities between Israeli forces and Palestinian armed groups were classified as a non-international armed conflict, it might still be asked if the law of war crimes extends to the ill-treatment by either party of their own civilians. Neither Common Article 3 nor Additional Protocol II make such a distinction, setting out fundamental guarantees for those who do not or who have ceased to take part in hostilities. Perhaps the notable broadening of the law of non-international armed conflict, and the attendant expansion of the concept of war crimes beyond international armed conflicts, challenges this idea that war crimes can only be committed against the opposing side (or sides) during a conflict. For a non-international armed conflict confined to the territory of a State, surely all civilians formally belong to the same overall power, even if some may profess allegiance or fall under the control of one or other parties to the armed conflict within that State.

Nevertheless, the war crimes provisions of the Rome Statute related to non-international armed conflict include some references to combatants and the property of “an adversary”. It is a war crime to physically mutilate persons “who are in the power of another party to the conflict”. When assessing the requirement that there be a nexus between an armed conflict and the alleged conduct, an ICC Pre-Trial Chamber cited amongst possible factors “the fact that the victim is a member of the opposing party”. This is not an absolute requirement though, and it has been cited in jurisprudence of both the Special Court for Sierra Leone and the ICTY where the tribunals found that the ill-treatment and killing of suspected or perceived collaborators were war crimes committed in internal armed conflicts. The Commission of Inquiry on Syria has described as unlawful killings the numerous deaths of suspected collaborators at the hands of various parties to the conflict.

The abuses perpetrated against alleged Palestinian collaborators are against civilians who are accused having provided information, often under coercion, to the Israeli authorities. The Gaza Commission did not take issue with the trial and punishment of those killed, but rather that they were executed summarily or before legal proceedings against them had been completed. The death penalty itself was not at issue. The link to the armed conflict referred to by the Commission, but not specified, may have been the provision of information to the opposing side. What then of those civilians merely labeled as collaborators, but who may have been tortured and killed as a matter of revenge or the settling of political scores? In the past, many Palestinians accused of involvement in prostitution or drug-dealing were also killed as collaborators. The ICTY has noted that “[n]ot all unlawful acts occurring during an armed conflict are subject to international humanitarian law”. Would the occurrence of such crimes during a military occupation, albeit not by the forces of the occupying power, mean that they are sufficiently “in the context of and was associated with” an armed conflict (albeit of an international nature)? If these killings by Palestinian armed groups qualify as war crimes, then so too might the torture and ill-treatment of Palestinian detainees at the hands of the Palestinian Authority. A key issue is determining at what point criminal acts by Palestinian armed groups against Palestinian civilians become war crimes, over which an international tribunal can potentially exercise jurisdiction.

Extra-judicial executions are undoubtedly criminal acts, which violate both human rights law and the fundamental guarantees of international humanitarian law as set out in Common Article 3. They can also amount to war crimes under customary international law and the Rome Statute of the International Criminal Court, although the two are perhaps not coterminous. The extra-judicial execution of alleged Palestinian collaborators by Palestinian armed forces and the context in which they occur raise difficult legal questions which the Gaza Commission overlooked. Such questions may eventually come to be addressed by the International Criminal Court itself.

Guest Post: Is the Execution of Collaborators a War Crime under the Rome Statute? (Part I)

by Shane Darcy

[Shane Darcy is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway and the author of Judges, Law and War; the Judicial Development of International Humanitarian Law (Cambridge, 2014). This is Part 1 of a two-part series.]

The recruitment and use of Palestinian collaborators by the Israeli authorities, and their ill-treatment and execution by Palestinian forces, has been a perennial feature of the conflict in Israel and Palestine. A common practice in many armed conflicts, the use of informers is seen as a vital means of intelligence gathering. A 2006 United States counterinsurgency manual stated that “[n]othing is more demoralizing to insurgents than realizing that people inside their movement or trusted supporters among the public are deserting or providing information to government authorities”. It is lawful, according to the United Kingdom manual on the laws of armed conflict, “to induce enemy civilians or soldiers to give information”, although it is clearly unlawful to use coercion against protected persons for such purposes. Such collaboration would be usually considered as treason or spying for an enemy, which is criminalised in most national jurisdictions, and for which numerous States have retained the death penalty.

Despite the prevalence of collaboration and informing during armed conflicts, international humanitarian law has had relatively little to say about the practice. Collaborators are not referred to as individuals or as a distinct category of participants in armed conflict in the relevant treaties, and thus not defined under the laws of armed conflict, while spies are generally understood under humanitarian law as referring to members of the armed forces that engage in espionage. The practice of collaboration is neglected in the legal academic literature also, although the phenomenon is addressed in other disciplines. International law has tended to defer to national jurisdictions when it comes to dealing with collaborators or traitors. During the Second World War, the United Nations War Crimes Commission decided that “[t]he trial of quislings would be left exclusively to the National Governments”. In the great purges that followed the Second World War thousands of collaborators were executed in Europe, many extra-judicially. The subsequent drafting of the 1949 Geneva Conventions saw States assert their right to deal with “spies and traitors” outside of the Conventions’ protections – the derogation in Article 5 of the Fourth Convention concerning protected person status is described as “an important and regrettable concession to State expediency”. The article does insist, however, on humane treatment and the rights of a fair and regular trial for certain persons suspected of having engaged in acts deemed hostile to State security.

The Commission of Inquiry on Gaza

Israeli security services have been said to use a “combination of pressure and sweeteners to entice Palestinians to divulge intelligence”. The Goldstone Commission briefly addressed the phenomenon of collaboration in Gaza, noting that it had received reports of attempted recruitment of Palestinians activists by the Israeli security services. The Commission condemned the killing of alleged collaborators by the Gaza authorities, describing these as “serious violations of human rights”. The United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict paid greater attention than its predecessor to the treatment of suspected collaborators by Palestinian armed groups, and analysed the lawfulness of their treatment through both human rights law and international humanitarian law. Regarding the killing of collaborators, the Commission reported that…

When Is a “Plain Meaning” Not Plain?

by Kevin Jon Heller

In my post on biological and chemical weapons yesterday, I rejected the idea that Art. 8(2)(b)(xviii) “squarely appl[ies]” (Ralf Trapp) or “plainly applies” (Alex Whiting) to chemical and biological weapons by arguing that the drafters of the Rome Statute intended Art. 8(2)(b)(xviii), the war crime of “[e]mploying asphyxiating, poisonous or other gases,” to have precisely the kind of “special meaning” that Art. 31(4) of the VCLT requires us to take into account when interpreting that provision.

After the post went up, Alex and I had a heated but typically friendly exchange on Twitter concerning “plain meaning” treaty interpretation. Interested readers can start with this tweet. Our debate did not focus on the applicability of Art. 31(4) of the VCLT. Instead, we argued about whether simply reading the text of Art. 8(2)(b)(xviii) makes it plain that it criminalises chemical and biological weapons. Alex thinks it’s evident that it does; not surprisingly, I disagree.

The problem with the debate is both obvious and timeless: if two people disagree about the correct interpretation of a text, how do they determine whose interpretation is correct? Alex rightly rightly pointed out that we should not reject a particular “plain meaning” simply because one person disagrees with it; any such standard would deny the possibility of plain meaning altogether. (Which, to be clear, I’d be happy to do on other grounds, because I follow the neo-pragmatic approach to interpretation associated with Stanley Fish. See, for example, this fantastic essay.)

But if one person’s disagreement cannot render a “plain meaning” not plain, how many people is enough? Five? 10? 100? At some point disagreement over the meaning of a text has to negate the possibility of any particular interpretation being considered “plain.” Alex and I went around and around on this, and he finally advocated what is essentially a procedural solution to the problem: the “plain meaning” of Art. 8(2)(b)(xviii) is whatever the ICC’s judges ultimately say it is.

As a descriptive matter, Alex is absolutely correct. But unless we believe the ICC’s judges are legally infalliable — and I certainly don’t! — we have to accept the possibility that they could be wrong about the “plain meaning” of Art. 8(2)(b)(xviii). So we are right back where we started: trying to determine how much disagreement over the interpretation of a text has to exist before we conclude the text has no plain meaning.

I have no easy answer. But I would still maintain that it strains credulity to believe that the “plain meaning” of Art. 8(2)(b)(xviii) indicates that it criminalises chemical and biological weapons. To see why, we don’t even have to return (as I think we should) to the drafting history of Art. 8. It is sufficient to note that a significant number of states still believe that Art. 8(2)(b)(xviii) does not criminalise chemical or biological weapons. How do we know that? Because 14 states formally proposed amending Art. 8 to criminalise those weapons at the ICC’s Review Conference in 2010: Argentina, Belgium, Bolivia, Burundi, Cambodia, Cyprus, Ireland, Latvia, Luxembourg, Mauritius, Mexico, Romania, Samoa and Slovenia. Here, in relevant part, are the provisions the 14 states wanted to add to Art. 8(2)(b):

xxvii) Using the agents, toxins, weapons, equipment and means of delivery as defined by and in violation of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, London, Moscow and Washington, 10 April 1972.

xxviii) Using chemical weapons or engaging in any military preparations to use chemical weapons as defined by and in violation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Paris, 13 January 1992.

These proposed amendments make no sense if the “plain meaning” of Art. 8(2)(b)(xviii) already criminalises chemical and biological weapons. So how can that interpretation be considered the “plain meaning,” given that at least 11% of the States Parties to the Rome Statute do not understand Art. 8(2)(b)(xviii) in the supposedly plain manner? Surely such disagreement indicates that there is no “plain meaning” of the war crime.

Does that mean the 14 states are right? Of course not. Perhaps Art. 8(2)(b)(xviii) really does criminalise chemical and biological weapons. All I’m saying is that we cannot reach that conclusion by looking to Art. 8(2)(b)(xviii)’s “plain meaning.” The meaning of the war crime is at best ambiguous or obscure.

But that, of course, is a critical realisation. Because it means that we have to look to the drafting history of the Rome Statute to determine the correct interpretation of Art. 8(2)(b)(xviii) even if we accept a plain-meaning approach to treaty interpretation. (Which we should not.) Here is Art. 32 of the VCLT:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) Leaves the meaning ambiguous or obscure.

Even though my understanding of the VCLT accords with Julian Davis Mortenson’s, I am willing to entertain the idea that the meaning of some provisions of the Rome Statute is so plain that we have no practical need to examine their drafting history. Art. 8(2)(b)(xviii), however, is not such a provision. Given the widespread disagreement among states concerning whether the war crime criminalises chemical and biological weapons, the best interpretation of Art. 8(2)(b)(xviii) is that it has no plain meaning.

The Rome Statute Does Not Criminalise Chemical and Biological Weapons

by Kevin Jon Heller

Over the past week, two posts at Just Security have argued that the ICC can prosecute the use of chemical and biological weapons as a war crime, even though they — unlike other types of weapons — are not mentioned in Article 8 of the Rome Statute. The first post was written by Ralf Trapp, who argued as follows:

Furthermore, there are the provisions of the Rome Statute of the International Criminal Court (ICC). Even though it does not use the terminology of the CWC (“chemical weapons”), there is no doubt that the terms “employing poison or poisoned weapons” and “employing asphyxiating, poisonous or other gases, and all analogous liquid, materials or devices” found in the list of war crimes under the statute’s Article 8 would squarely apply to the use of chlorine or mustard gas as a weapon of war. Any such use would consequently come under the jurisdiction of the ICC.

Trapp does not even acknowledge any other interpretation of Article 8. By contrast, the second post, written by Alex Whiting, admits that a different interpretation is possible. But Whiting nevertheless sides with Trapp, citing an earlier post by Dapo Akande at EJIL: Talk!:

The Rome Statute originally included a direct ban on chemical and biological weapons, but it was dropped at the same time as a ban on weapons causing unnecessary suffering was narrowed to apply only to those weapons listed in an annex (which does not exist because the States Parties never adopted one). This narrowing was done to avoid having the broader provision apply to nuclear weapons. The direct chemical and biological weapons prohibition was then dropped, apparently because some negotiators thought that there should be parity in approach to nuclear weapons (possessed by wealthy nations) and chemical and biological weapons (the more likely option for poorer countries). The claim that that the Statute therefore does not cover chemical and biological weapons was reinforced by Belgium’s efforts at the ICC Review Conference in Kampala in 2010 to amend the Statute to include a ban on chemical and biological weapons, indicating that there was an understanding among at least some States Parties that the Statute as written did not already do so.

But Akande persuasively argues (reinforcing what Trapp intuits) that the language in the Statute prohibiting poisonous and asphyxiating gases and analogous liquids, materials, and devices plainly applies on its own terms to most — if not all — chemical and biological weapons. Since the treaty text is clearly written, there is no need to consider the history of its drafting, per the Vienna Convention on the Law of the Treaties. In this case, the difficulty with relying on the negotiation history in the first instance is that it is highly indeterminate: Assessing what 120 countries “intended” when they adopted the Rome Statute is nearly impossible, and therefore the plain language of the treaty should govern when it is clear, as it is here.

I disagree with Trapp and Whiting. I won’t rehash the arguments I made in response to Dapo’s post; interested readers can see our exchange in the EJIL: Talk! comments section. But I do want to flag three critical problems with the argument advanced by Trapp and Whiting: one factual, one theoretical, and one political.

The factual problem is that this is simply not a situation in which the drafting history is “highly indeterminate.” Few drafting disputes are as well known as the dispute over the criminalisation of nuclear weapons, chemical weapons, and biological weapons. And as Whiting’s own account makes clear, we know with absolute certainty that not enough states favoured criminalising the use of chemical and biological weapons — because the proposal to criminalise them failed. The reason why states opposed criminalising their use is irrelevant; I’m quite sure that some may have wanted to reserve the right to use them, while others were happy to criminalise their use but did not want to alienate the nuclear states. All that matters is that it is undisputed states tried and failed to criminalise the use of chemical and biological weapons.

It does not matter, then, whether “[a]ssessing what 120 countries ‘intended’ when they adopted the Rome Statute is nearly impossible.” What matters is whether we know how 120 states understood Art. 8 of the Rome Statute. And we do…

Why China Will Ignore the UNCLOS Tribunal Judgment, and (Probably) Get Away With It

by Julian Ku

U.S. commentary has largely celebrated the UNCLOS Arbitral Tribunal’s award finding it has jurisdiction to consider the merits on many of the Philippines’ South China Sea related claims against China.   Perhaps the most positive note is found in Jill Goldenziel’s essay at the Diplomat entitled, “International Law Is the Real Threat to China in the South China Sea.”

But just by getting this far, the case already has important implications for the use of international courts to manage and resolve international conflicts. International law has become a weapon of the weak. Countries that cannot afford or have no chance of winning military conflicts have increasingly turned to courts to resolve territorial, economic, and human rights claims. Other countries are closely watching the Philippines as they consider similar options for asserting their own rights in the South China Sea and beyond. Vietnam, in particular, is considering filing a similar lawsuit. At the very least, the case may force China to engage in talks with its neighbors to resolve competing claims to the South China Sea. By doing so, China can save face and claim to resolve the disputes on its own terms. If law can bring China to its knees, cases involving the South China Sea will have ripple effects far beyond its shores.

For my own part, I am much more skeptical about the benefits of an arbitral award for the Philippines. As I argued last year, there is little reason to think China will suffer serious reputational consequences for defying the UNCLOS Arbitral Tribunal’s award on jurisdiction or on the merits. Why?

Because other cases involving “weak” nations using international courts against “strong” nations shows that “strong” nations suffer few consequences and rarely change behavior significantly. The most similar case to Philippines v. China is probably the 1986 ICJ judgment in Nicaragua v. United States. That case (also brought by the Philippines’ current lawyer Paul Reichler) resulted in the U.S. withdrawing from the compulsory jurisdiction of the ICJ, not showing up for the merits argument, and ignoring the ICJ’s final judgment on the merits in that case. While the U.S. suffered some negative votes in the General Assembly and had to veto several Security Council resolutions, it is hard to argue that the U.S. “complied” with the ICJ judgment as a result of the reputational costs it suffered by walking away. The U.S. never paid the compensation the ICJ held that it owed, and it stopped mining Nicaraguan harbors only years later.

Russia has also recently demonstrated the ability of a “Strong” state to ignore an international court ruling. After detaining a Dutch-flagged Greenpeace vessel and its crew in 2013, Russia faced a provisional measures proceeding in the International Tribunal for the Law of the Sea. That tribunal ordered Russia to “promptly release” the vessel upon the posting of a bond and to release the crew as well.   Russia did not show up for the argument in court, and simply ignored the ITLOS order as well as a subsequent UNCLOS arbitral award.

Perhaps the Philippines will win some sort of leverage over China down the road by using a favorable award as a bargaining chip with China. But in the short-term, the Philippines has enraged China and has also led China to denounce (for the first time) the UNCLOS arbitral tribunal itself. It would not be impossible to imagine China announcing a withdrawal from UNCLOS (just to avoid the dispute settlement provisions) and simply adhering to UNCLOS as customary international law. That result will not be great for China, but I have a hard time seeing how it helps the Philippines either.

So How Is China Taking Its Loss at the UNCLOS Arbitral Tribunal? Not Well.

by Julian Ku

I have been curious to see how China would respond to yesterday’s UNCLOS Annex VII Arbitral Tribunal’s ruling finding it has jurisdiction to hear the Philippines South China Sea related claims.  Well, the Chinese Ministry of Foreign Affairs was ready with this blistering response:

Q: The Arbitral Tribunal established at the request of the Republic of the Philippines rendered the award on jurisdiction and admissibility of the South China Sea arbitration. What is China’s comment on that?

A: The Chinese government will not accept nor participate in the South China Sea arbitration unilaterally initiated by the Philippines. The Chinese Foreign Ministry has immediately released a statement to elaborate on China’s solemn position. The award is null and void, and has no binding effect on China. I would like to highlight three points.

First, China has indisputable sovereignty over the South China Sea Islands and the adjacent waters. As a sovereign state and a State Party to the UNCLOS, China is entitled to choose the means and procedures of dispute settlement of its own will. China has all along been committed to resolving disputes with its neighbors over territory and maritime jurisdiction through negotiations and consultations. China and the Philippines have repeatedly reaffirmed in bilateral documents since the 1990s and the Declaration on the Conduct of Parties in the South China Sea (DOC) in 2002 that they shall resolve relevant disputes through negotiations and consultations.

Second, disregarding that the essence of this arbitration case is territorial sovereignty and maritime delimitation and related matters, maliciously evading the declaration on optional exceptions made by China in 2006 under Article 298 of the UNCLOS, and negating the consensus between China and the Philippines on resolving relevant disputes through negotiations and consultations, the Philippines and the Arbitral Tribunal have abused relevant procedures, misrepresented the law and obstinately forced ahead with the arbitration, and as a result, have severely violated the legitimate rights that China enjoys as a State Party to the UNCLOS, completely deviated from the purposes and objectives of the UNCLOS, and eroded the integrity and authority of the UNCLOS.

Third, as a State Party to the UNCLOS, China firmly opposes the acts of abusing the compulsory procedures for dispute settlement under the UNCLOS, and calls upon all parties concerned to work together to safeguard the integrity and authority of the UNCLOS. China urges the Philippines to honor its own commitments, respect China’s rights under international law, change its course and return to the right track of resolving relevant disputes in the South China Sea through negotiations and consultations. That is the correct path with bright prospects.

The full MFA statement is here, and includes a swipe at the Philippines for using the “cloak of law as a political provocation.”  It is worth noting that China is still aiming most of its rhetorical fire at the Philippines, but it has also now directly criticized the Arbitral Tribunal for “abus[ing] relevant procedures [and] misrepresent[ing] the law….”  I also detect a slightly larger emphasis in China’s complaint about the “unilateral” nature of this arbitration.

I am also impressed by China’s willingness to just ignore the clear provisions of Article 288(4) of UNCLOS, and simply declare that the Tribunal’s ruling is “null and void” and has “no binding legal effect.”  At some point, someone in China is going to have to gin up a legal argument to get past UNCLOS’ clear language giving the Tribunal the power to determine questions of jurisdiction.  But for now, it looks like China is going to stick to its guns.

Breaking: UNCLOS Tribunal Rules Against China, Unanimously Finds It Has Jurisdiction Over Philippines South China Sea Claims

by Julian Ku

It’s been a rough week for China’s South China Seas policy. In addition to facing a US Freedom of Navigation operation near one of its artificial islands, the arbitration tribunal formed under the United Nations Convention on the Law of the Sea has decided that it has jurisdiction to proceed to the merits on the Philippines’ legal challenge to certain Chinese activities in the South China Sea.

I will blog more about this later, but for now it is worth noting that the tribunal unanimously ruled that it can proceed to the merits on seven out of 15 of the Philippines’ claims, and that it reserves the question of jurisdiction on seven other claims as being so interwoven with the merits that it cannot be resolved without first considering the merits.

I will note that the tribunal reserved the question of jurisdiction over the Philippines’ biggest and most flashy claim: the argument that China’s Nine Dash Line “historic rights” claim is inconsistent with UNCLOS. It held that:

The Philippines’ Submission No. 1 does, however, require the Tribunal to consider the effect of any historic rights claimed by China to maritime entitlements in the South China Sea and the interaction of such rights with the provisions of the Convention. This is a dispute concerning the interpretation and application of the Convention. The Tribunal’s jurisdiction to consider this question, however, would be dependent on the nature of any such historic rights and whether they are covered by the exclusion from jurisdiction over “historic bays or titles” in Article 298. The nature and validity of any historic rights claimed by China is a merits determination. The possible jurisdictional objections with respect to the dispute underlying Submission No. 1 therefore do not possess an exclusively preliminary character. Accordingly, the Tribunal reserves a decision on its jurisdiction with respect to the Philippines’ Submission No. 1 for consideration in conjunction with the merits of the Philippines’ claims.

On the other hand, the Tribunal did find that the question of whether the Scarborough Shoal is a “rock” or an “island” is clearly within the jurisdiction of the Tribunal, irrespective of the merits. It did so because it held that there are no overlapping sovereignty or sea boundary claims that might impact the determination.

Overall, it should never be surprising when an arbitral tribunal finds that it has jurisdiction to hear a case. The Tribunal did throw China a bone by noting that it is still possible that seven of the Philippines’ claims (including the Nine Dash Line challenge) could be dismissed for lack of jurisdiction at the merits stage.

But by reserving the question of jurisdiction, and guaranteeing it will rule on the merits for several other claims, the Tribunal shoves the ball back onto China’s court.  Will China continue to claim it is not bound by the Tribunal for lack of jurisdiction, when the Tribunal has now found it has jurisdiction?  China would more clearly be in violation of UNCLOS now than it was before, because UNCLOS Article 288(4) makes it clear that “[i]n the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.”  My guess is China will pretend that Article 288 doesn’t exist and continue to refuse to participate.  The interesting question is whether China will pay any serious price (in reputational terms) if it does so.

Guest Post: Norm Diffusion in the Transpacific Partnership

by Ardevan Yaghoubi

[Ardevan Yaghoubi is a Ph.D Student at Princeton University’s Department of Politics.] 

“As we speak, China wants to write the rules for the world’s fastest-growing region. That would put our workers and our businesses at a disadvantage. Why would we let that happen? We should write those rules.”  – President Obama, State of the Union Address, January 20, 2015

Proponents of the recently-concluded Trans-Pacific Partnership (TPP) typically argue that the agreement will do one of two things: increase economic growth through exports and jobs, or advance favorable geopolitical and national security objectives. The economic perspective on the agreement sees a rational-choice model of expected economic utility; the geopolitical frame emphasizes the TPP’s role in creating reputation, prestige, and soft power.

But the strictly material and abstractly ideational explanations of the TPP both miss an important feature of the agreement: that the TPP is designed to create norms that spread across the international system. It is not only intended to bring about economic benefits or directly buttress American allies in Asia to counter a rising power. In the study of international politics, this process is called norm diffusion. I argue that understanding norm diffusion helps to articulate the implicit theory behind President Obama’s metaphor of “writing the rules”. By melding insights about norm diffusion to the frame of a traditional trade agreement, the TPP is a unique and noteworthy innovation in international law and institutionalism. Whatever one’s thoughts about the merits of the TPP, the basic hypothesis undergirding its intended effects deserves greater clarity.

In this post, I explore the logic of norm diffusion in the TPP: Is norm diffusion an objective of the TPP? If so, how exactly is the process of diffusion expected to occur? And what obstacles might block the reproduction of the TPP’s rules? I will address these questions in turn.

Is the TPP Really About Norm Diffusion?

Alongside their traditional role of merely cutting tariffs and lowering trade barriers, today’s FTAs are a tool of international economic competition: the rules contained in these agreements regulate and shape industries from agriculture to manufacturing to finance. It is hardly controversial, then, that FTAs will tend to reflect the economies and economic priorities of the states who have negotiated them. States don’t have total latitude in determining the content of FTAs, since WTO rules still exert substantial influence. But there are many parts of the world economy where the WTO’s influence is limited.

What norms are these? Well, the TPP text agreed on in Atlanta contains chapters regulating norms spanning the right to organize, the illegal trade of wildlife and environmentally protected species, generic medicines, copyright infringement, 3D printing and manufacturing, financial investments, state-owned enterprises and government procurement, and of course, tariffs and non-tariff barriers to trade.

But the TPP came into being at the end of a two-decade period in which American influence in the global trade system has been waning. While the number of new agreements negotiated has increased dramatically since the millennium, the U.S. has signed just a handful of notable new FTAs: with Korea (2012), Dominican Republic-Central America or DR-CAFTA (2005), Singapore (2004), Chile (2004), and Australia (2004). Taking stock of the total number of agreements by region, the U.S. lags behind the Asia Pacific, South America, Eurasia, Europe, the Middle East, and Africa.

Seen against this economic and geopolitical backdrop, the necessity of the TPP from an American policy perspective should be evident: it represents approximately 40% of global GDP across North and South America and the Asia Pacific, and nearly one-third of global trade. Without it, the U.S. loses leverage and potential economic opportunities in a century where its percentage share of the global economic pie will continue to shrink. It also brings post-war allies, like the U.S. and Japan, closer together as a key element of the “pivot to Asia”, while integrating non-allied states like Vietnam and Malaysia.

Many geopolitical analyses of the TPP end with vague references to “soft power” or U.S. national security interests and little explanation of how the TPP will actually further those aims. What these narratives miss is that the logic of the agreement is based on a theory of norm diffusion. In its essence, norm diffusion (or sometimes called norm “cascade”) refers to “an active process of international socialization intended to induce norm breakers to become norm followers”. International relations scholars have given careful attention to the way in which norms and rules circulate and achieve legitimate compliance in international politics and international law.

But what is striking about the TPP is that its architects are themselves conscious of these socialization effects. For instance, here is a representative statement by USTR Ambassador Michael Froman writing in Foreign Affairs: (more…)

China’s Weak Legal Basis for Criticizing the US Navy’s Freedom of Navigation Operations in the South China Sea

by Julian Ku

The US Navy executed a much anticipated “freedom of navigation operation” (FONOP) today within 12 nautical miles of Subi reef, the site of one of China’s artificial islands in the South China Sea.   Predictably, China has reacted sharply to this operation by sending two Chinese destroyers to shadow the U.S. ship and planes, summoning the U.S. ambassador, and issuing angry public statements (see below).  Although it is not the main focus of their complaints, the Chinese have repeatedly described the U.S. operation as “illegal” thus highlighting the legal conflict underlying this naval showdown.

The most detailed official reaction was presented by China’s Ministry of Foreign Affairs spokesperson Lu Kang.

The USS Lassen illegally entered waters near relevant islands and reefs of China’s Nansha Islands without the permission of the Chinese government on October 27. Relevant authorities of the Chinese side monitored, followed and warned the US vessel. Relevant actions by the US naval vessel threatened China’s sovereignty and security interests, put the personnel and facilities on the islands and reefs at risk and endangered regional peace and stability. The Chinese side hereby expresses strong dissatisfaction and opposition.

It is unclear exactly how the U.S. ship put personnel on the islands and reefs at risk, but in any event, the spokesperson went on to assure the world that China has, and always will, respect the freedom of navigation consistent with international law.

China’s Deputy Foreign Minister Zhang Yesui echoed these remarks, although this statement focused more on China’s “indisputable sovereignty” than on the legality of the U.S. actions.  China’s Foreign Minister Wang Yi simply warned the U.S. against “stirring up trouble.” Perhaps more seriously, China’s Defense Ministry spokesperson called the U.S. action an “abuse” of the principle of “freedom of navigation under international law” that would cause “harm” to bilateral trust and relations.

As I suggested in a previous post, the US and China might have chosen to downplay this incident by treating the U.S. naval visit as an “innocent passage” through China’s territorial seas.  But China believes even innocent passage requires its permission, and the U.S. Navy made sure that its destroyer was accompanied by naval surveillance aircraft. The inclusion of the aircraft makes it clear that the U.S. is not trying to claim an “innocent passage.” Rather, the U.S. is stating (through its actions) that it does not believe Subi reef (where the Chinese have added an artificial island) is a rock or island generating a territorial sea.  Therefore, US naval vessels should be free to conduct any activity they wish in this area.

It is interesting that at least one Chinese media outlet is claiming that there is no real conflict over international law between the two sides.  In this portrayal, China’s actions in building artificial islands is “completely legal” and the U.S. is just trying to flaunt its power by “harassing” China.  China’s legal position appears to be that it is building artificial islands on reefs that are entitled to a 12 nautical mile territorial sea.  Or, as another commentator sympathetic to China’s position has argued, because China claims every land feature in the South China Sea, even if the relevant reef is not entitled to a territorial sea, other nearby land features (also claimed by China) probably generate such rights.

In my view, the U.S. has a much stronger legal position.  Indeed, China is barely offering any serious legal defense other than repeating the words “indisputable sovereignty” repeatedly.  China is not doing itself any favors by calling US actions illegal, but failing to offer any specific criticism or explanation of its own legal position.

On the other hand, perhaps it is China’s interest to downplay the legal aspects of this dispute, and to feed the narrative that the U.S. is “provoking” a confrontation.  To some degree,this is working, as the global and Chinese media are feeding the narrative about a US-China naval showdown and ignoring the niceties of the U.S. legal position.  Indeed, if China raises the stakes by threatening some military response (as it is getting close to doing), it will be hard to convince the world (or the U.S. public) that such a conflict is worthwhile in order to vindicate an abstract legal principle like “freedom of navigation.”

Missing Charges in the OTP’s Georgia Request

by Kevin Jon Heller

I  have finally made my way through the OTP’s 162-page request to open an investigation into the situation in Georgia. I hope to write a few posts in the coming days on various aspects of the request; in this post I simply want to note my surprise that the OTP has not alleged that Georgia is responsible for two interrelated war crimes: Art. 8(2)(b)(ix), “[i]ntentionally directing attacks against… hospitals and places where the sick and wounded are collected, provided they are not military objectives”; and Art. 8(2)(b)(xxiv), “[i]ntentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.” Paragraph 175 of the request, which discusses an attack by Georgian armed forces on Russian Peacekeeping Forces Battalion headquarters (RUPKFB HQ), would seem to amply justify both charges (emphasis added):

According to information provided by the Russian authorities, at around 06h35 on 8 August 2008 a Georgian tank, located on the road leading from Zemo-Nikozi to Tskhinvali, fired at the Glaz observation post, located on the roof of the RUPKFB HQ barracks, wounding Jun Sgt I.Ya. Lotfullin.240 Following this attack on the RUPKFB HQ, Georgian armed forces carried out a larger attack on the RUPKFB HQ using small arms, mortars, artillery and tank guns. The attack lasted around 20 minutes. At approximately 07h00, Georgian tanks moving towards Tskhinvali allegedly fired on and destroyed an infantry fighting vehicle (type BMP-1, hull number 619) and an armoured patrol car (type BRDM) that had been placed on the Tshkinvali road to separate the opposing sides. Two peacekeepers on duty are alleged to have been killed. The Georgian armed forces allegedly reopened fire on the RUPKFB HQ at 07h40 and 8h00, killing another two Russian peacekeepers. In the course of the attack on the RUPKFB HQ, the Georgian armed forces also allegedly targeted a medical aid post and ambulances which were located inside the compound and appropriately marked with Red Cross symbols. The shelling of the RUPKFB HQ is said to have continued through the day until 9 August 2008.

The absence of charges involving the medical facility and the ambulances is particularly baffling given that, as Patryk Labuda has ably discussed, the OTP might find it difficult to prove its more general allegations concerning Georgia’s attacks on Russian peacekeepers. The attacks on the medical facility and ambulances would be criminal even if the Russian soldiers at the RUPKFB HQ did not legally qualify as peacekeepers at the time of the attack. So it is clearly in the OTP’s interest to pursue Art. 8(2)(b)(ix)&(xxiv) charges in addition to the Art. 8(2)(b)(iii) peacekeeper charges — even if only as a fallback should the peacekeeper charges fail.

Chase Madar on the Weaponisation of Human Rights

by Kevin Jon Heller

Last week, the inestimable Chase Madar gave a fascinating talk at SOAS entitled “The Weaponisation of Human Rights.” More than 100 people showed up, and I was privileged — along with Heidi Matthews, a British Academy postdoc at SOAS — to respond to Chase’s comments. Here is Chase’s description of the talk:

Human rights, once a rallying cry to free prisoners of conscience and curb government abuses, is now increasingly deployed as a case for war, from Yugoslavia to Iraq, from Libya to Afghanistan. Human rights lawyers in and out of government are weighing in on how wars should be fought: in the United States, the phrase “human rights-based approach to drones” passes without much comment in the legal academy and mainstream media. As the grandees of the human rights movement enter high office throughout North America and Western Europe, what is the effect of this legal doctrine on warfare–and vice versa?Will this blossoming relationship bring about more humanity in warfare? Or is human rights being conscripted into ever more militarized foreign policy?

SOAS has now made the video of the event available on YouTube; you can watch it below:



The video contains Chase’s talk, along with my response and Heidi’s response. We apologize for the middle section, where the lighting is bad; I don’t know why that happened. But the audio is excellent throughout.

Please watch!