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International Courts and Dispute Resolution

ICC Communication About Australia’s Mistreatment of Refugees

by Kevin Jon Heller

As has been widely reported, 17 international-law scholars — including yours truly — recently submitted a 105-page communication to the Office of the Prosecutor alleging that Australia’s treatment of refugees involves the commission of multiple crimes against humanity, including imprisonment, torture, deportation, and persecution. The communication is a tremendous piece of work, prepared in large part by the Global Legal Action Network (GLAN) and Stanford Law School’s International Human Rights and Conflict Resolution Clinic.

Peter Dutton, Australia’s Minister for Immigration and Border Protection, has described our efforts as a “wacky cause.” Nothing could be further from the truth. The communication is serious, sober, analytic, and comprehensive. I think it establishes far more than a “reasonable basis” to believe that Australian government officials and officials of the corporations that run the prison camps on Manus Island and Nauru have committed crimes against humanity. Here is (most of) the executive summary…

Dear Mr President: 40% of Zero is Zero

by Kevin Jon Heller

Kill me:

Funding will be taken away from any organisation that is “controlled or substantially influenced by any state that sponsors terrorism” or is behind the persecution of marginalised groups or systematic violation of human rights.

The order has singled out peacekeeping, the International Criminal Court and the United Nations Population Fund. The UNPFA targets violence against women, fights to keeps childbirth and abortion, where it is legal, safe, and was a key presence in safeguarding women in Haiti following Hurricane Matthew.

The order demands decreasing US funding towards international organisations by at least 40 per cent. Mr Trump has included the International Criminal Court here, yet the US currently pays nothing to the ICC.

When asked why he wants to reduce funding to an organisation the US doesn’t fund, President Trump reportedly responded, “the Prosecutor, Frederick Douglass, is a rabble-rouser.”

Symposium on Asia and International Law

by Chris Borgen

The forthcoming issue of the European Journal of International Law will feature an article by Professor Simon Chesterman, the Dean of the National University of Singapore’s Faculty of Law, entitled Asia’s Ambivalence About International Law and Institutions: Past, Present and Futures. This week, Opinio Juris and EJILTalk will hold a joint symposium on the two blogs on Professor Chesterman’s article.

The article’s abstract explains:

Asian states are the least likely of any regional grouping to be party to most international obligations or to have representation reflecting their number and size in international organizations. That is despite the fact that Asian states have arguably benefited most from the security and economic dividends provided by international law and institutions. This article explores the reasons for Asia’s under-participation and under-representation. The first part traces the history of Asia’s engagement with international law. The second part assesses Asia’s current engagement with international law and institutions, examining whether its under-participation and under-representation is in fact significant and how it might be explained. The third part considers possible future developments based on three different scenarios, referred to here as status quo, divergence and convergence. Convergence is held to be the most likely future, indicating adaptation on the part of Asian states as well as on the part of the international legal order.

The symposium will begin on Monday with an opening post by Professor Chesterman, followed by posts on Opinio Juris by Professor Tony Anghie of the National University of Singapore and on EJILTalk by Professor Eyal Benvenisti of Cambridge University.  On Tuesday, Opinio Juris will have commentary by Professor B.S. Chimni of Jawaharlal Nehru University and EJILTalk will have a piece by Professor Robert McCorquodale of the University of Nottingham and the Director of the British Institute of International and Comparative Law.   Wednesday will have observations and reactions on Opinio Juris by Judge Xue Hanqin  of the International Court of Justice and on EJILTalk by Judge Paik Jin-Hyun of the International Tribunal for the Law of the Sea. Finally, there will be a closing post pn both blogs by Professor Chesterman on Thursday.

We hope you will join us on both blogs for the discussion.

Boer on Footnotes in Use of Force Scholarship

by Kevin Jon Heller

My friend Lianne Boer, who recently finished her PhD at VU Amsterdam, has just published a fantastic article in the Leiden Journal of International Law entitled “‘The greater part of jurisconsults’: On Consensus Claims and Their Footnotes in Legal Scholarship.” Here is the abstract:

This article portrays the use of consensus claims, as well as their substantiation, in the debate on cyber-attacks and Article 2(4) of the UN Charter. Focusing on (re)interpretations of the prohibition on the use of force in the light of cyber-attacks, the article first shows how scholars appeal to the ‘majority opinion’ of scholars or the ‘generally accepted’ interpretation of the norm. It points out the different uses of these ‘consensus claims’, as I refer to them, and what scholars invoke exactly when referring to this elusive majority. Elaborating on this ‘elusive’ nature of consensus, I argue that the appeal of a consensus claim lies precisely in its invocation of a fairly mystical ‘out there’. Consensus, as it turns out, evaporates the moment we attempt to substantiate it, and this might be precisely where its strength lies. The second part of the article thus shifts focus to how these claims are substantiated. An empirical inquiry into the footnotes supporting consensus claims reveals that, most of the time, writers refer to the same scholars to substantiate their claims. Making use of Henry Small’s idea of ‘concept symbols’, the article argues that these most-cited scholars turn into the ‘bearers’ of majority opinion. On the level of the individual academic piece, the singular reference might appear to be fairly innocent. Yet, when considered as a more widespread practice of ‘self-referentiality’, it seriously impacts who gets a say – and thus, ultimately, what we know – in international law.

This is truly innovative scholarship — the kind of work that makes you ask yourself, “why didn’t I think of that?” Well, Lianne did think of it. And I hope her article, as well as her dissertation, spurs similar work in other areas of international law.

Read Boer!

Call for Papers: ICTY Legacy Conference

by Kevin Jon Heller

As part of its “ICTY Legacy Dialogues” events, the International Criminal Tribunal for the former Yugoslavia (“ICTY”) is organising in the week of 19 June 2017 a conference on the legacy of the ICTY in Sarajevo, Bosnia & Herzegovina. We invite your participation.

With the ICTY’s closure scheduled for 31 December 2017, the conference aims to enable others to build on the achievements of the ICTY over its 24 year history. The vision is for a series of dynamic dialogues with actors who can take what the ICTY has developed into new areas, with a particular focus on the role of national actors. The conference will explore how the work of the ICTY can inform responses to atrocities and international crimes at a national level in a number of fields.

Examples of topics to be addressed include:

  • Institutional and Administrative Legacy e.g. Witness protection and support – post testimony support: needs and resources; reparations and victim status; gender sensitive witness support.
  • Normative Legacy – Synergies, cross-fertilization, and discrepancies between the jurisprudence of the ICTY, national jurisdictions, regional courts, and other international courts and tribunals; with a special focus on: how ICTY jurisprudence has influenced national jurisdictions, for instance in the region of the former Yugoslavia; and how domestic law and jurisprudence has informed international justice.
  • Operational Legacy/Complementarity – Challenges faced by the Office of the Prosecutor in investigating and prosecuting conflict-related crimes, including challenges in building leadership cases and obtaining access to evidence; OTP’s capacity building challenges and outcomes; perspectives on operational challenges facing national jurisdictions and potential/demonstrated solutions (including through lessons learned and applied from OTP’s experience).
  • Legacy on Access to Justice for Women – The evolution of jurisprudence on conflict-related sexual violence; participation of women in the justice process; working with NGOs and civil society to identify witnesses; protection of sensitive witnesses/victims; compensation mechanisms for sexual violence victims in national jurisdictions.
  • Participatory Legacy – Defence in international criminal trials at international and national courts; defence investigations; defence organizations and offices; rights of the accused.
  • Historic Legacies – Historic value of the extensive records of the ICTY; records as a means of combating denial; access to ICTY records and archives in the region; importance of user friendly information sharing and judicial databases.
  • Non-Judicial Legacy – The ICTY and its limitations; to what extent can a judicial institution contribute to peace and reconciliation; how to fill the gap through non-judicial mechanisms; the importance of memorialisation and the consolidation of the rule of law through capacity building.
  • Leaving a Legacy: Outreach Activities – What should be the scope and goals of outreach on the ICTY legacy after the closure of the Tribunal; what are the needs of local communities in respect of the ICTY’s legacy; what are the responsibilities of different societal actors – e.g. politicians, journalists, the legal community, civil society?

Those interested in presenting a paper at the conference should submit an application via email to the ICTY Legacy Committee at: ictylegacypapers [at] un [dot] org

Applications must include:

  1. A 300-word abstract of the proposed paper;
  2. The author’s name, title, and affiliation (if any);
  3. The author’s curriculum vitae/résumé; and
  4. The author’s contact details including phone number and email address.

All applications must be received no later than 15 December 2016.

Successful applicants will receive by approximately 15 January 2017 an invitation to submit a full paper, and first drafts of papers will be expected to be submitted by 15 April 2017. Submission of an application will be considered as acknowledgement that the author is available to be in Sarajevo (or other regional access point) in June 2017 to participate in the conference. Subject to securing sufficient funding, the ICTY will endeavour to cover travel and/or accommodation costs of successful applicants.

A Quick Reply to Stephen Rapp About the US and the ICC

by Kevin Jon Heller

The inimitable David Bosco dropped quite the bombshell yesterday at FP.com: The Office of the Prosecutor at the ICC intends to open a formal investigation into the situation in Afghanistan — a situation that includes, as the OTP discussed in its most recent preliminary-examination report, US torture of detainees between 2003 and 2005. I’ll have more to say about the possibility of an investigation in the coming days, when I’m a bit less harried. But I wanted to briefly respond to something Stephen Rapp, the former US War Crimes Ambassador, recently said about that torture — a comment that David reprints in a post today. Rapp contrasted US torture in Afghanistan with the kinds of crimes international criminal justice normally addresses:

[T]he alleged crimes committed during US enhanced interrogations do not reach anything like the scale of these other violations. The Durham review was looking into 101 cases of alleged abuse, including those of two detainees who died in custody. A broader inquiry could increase those number, but even with the widest scope, the numbers of victims pale in comparison to those in the situations that have come before international courts and tribunals.

As is often the case when people discuss crimes potentially within the ICC’s jurisdiction, Rapp’s comment elides the critical difference between situational gravity and case gravity. If the OTP was considering opening an investigation only into US torture in Afghanistan (not “enhanced interrogation”), Rapp would have a point — the situational gravity would almost certainly be insufficient to justify a formal investigation. Israel’s attack on the Mavi Marmara is a good point of comparison: however unjustifiable Israel’s actions, the numbers simply weren’t large enough to investigate. (And I say that as perhaps the earliest opponent of a quantitative approach to situational gravity.)

But that is not what Bosco says the OTP will do. According to Bosco, and consistent with its previous statements, the OTP will be opening a formal investigation into the situation in Afghanistan generally — not only crimes committed not by US forces, but also crimes committed by the Taliban, by Afghan government forces, and by other members of the coalition. At most, therefore, US torture will be one case within the overall situation in Afghanistan. That’s critical, because it means that the scale of US torture should be compared to the scale of crimes at issue in other individual cases the OTP has pursued, not to the scale of crimes in other situations as a whole. And there is no question that the OTP has pursued similarly limited cases. To take only the most striking example, Ahmad Al Faqi Al Mahdi was charged with and convicted of purely victimless crimes — destroying cultural property. If the Al Mahdi case was grave enough for the OTP, surely US torture in Afghanistan would be.

To be clear, I do not expect the OTP to bring charges against an American anytime soon. But if no such case materialises despite the OTP opening a formal investigation into Afghanistan, it won’t be because US torture there is insufficiently grave enough to prosecute.

NOTE: I am using Rapp’s comment to make a point, not to criticise him. I have great respect for Rapp’s commitment to international criminal justice, and I like him very much as a person.

New Article on SSRN

by Kevin Jon Heller

I have posted a short article on SSRN, entitled “Taking a Consenting Part: The Lost Mode of Participation.” Here is the abstract:

This short article, my contribution to a special issue of the Loyola International and Comparative Law Review commemorating the 70th anniversary of the Nuremberg Trial, critically examines “taking a consenting part” in an international crime – a mode of participation that was applied by the Nuremberg Military Tribunals but then disappeared into the ether of international criminal law, never to be seen again. The article is divided into three sections. Section I briefly explains how the NMTs understood the basic principles of individual criminal responsibility. Section II discusses the essential elements of “taking a consenting part” as a sui generis omission-based mode of participation. Finally, using Hadžihasanović at the ICTY as a case study, Section III asks whether international criminal law would be better off if it rediscovered “taking a consenting part” in an international crime.

As always, comments welcome!

The Guardian’s Remarkable Lack of Concern for Accuracy

by Kevin Jon Heller

I love the Guardian. It’s generally a great paper. But its unwillingness to correct even the most basic mistakes constantly amazes me. In an otherwise interesting article about the ICC and environmental crimes, John Vidal and Owen Bowcott — the Guardian‘s environment editor and legal affairs correspondent, respectively — say this (emphasis mine):

The ICC can take action if the crime happens in any of the 139 countries that have signed up to the Rome Statute, if the perpetrator originates from one of these countries, or if the UN security council refers a case to it. Crimes must have taken place after the Rome statue came into force on 1 July 2002.

This is just wrong. Unequivocally wrong. 139 states have signed the Rome Statute, but only 124 have ratified or acceded to it. The ICC has territorial and active-nationality jurisdiction only over the latter.

I tweeted the correction to John Vidal. He’s ignored it — for reasons that are beyond me, given that it would take a web editor 10 seconds to correct. But perhaps Owen Bowcott is to blame: a few years ago he not only refused to correct his blatant mistake concerning the ICTY’s holding in Perisic regarding specific direction, he repeated his mistake in a later article on Charles Taylor.

New Essay: What Is an International Crime? (A Revisionist History)

by Kevin Jon Heller

I have posted the essay on SSRN. Here is the abstract:

The question “what is an international crime?” has two aspects. First, it asks us to identify which acts qualify as international crimes. Second, and more fundamentally, it asks us to identify what is distinctive about an international crime – what makes an international crime different from a transnational crime or an ordinary domestic crime.

Considerable disagreement exists concerning the first issue, particularly with regard to whether torture and terrorism should be considered international crimes. But nearly all states, international tribunals, and ICL scholars take the same position concerning the second issue: an act qualifies as an international crime if – and only if – that act is universally criminal under international law. The international-law aspect of the definition distinguishes an international crime from a domestic crime: although some acts that qualify as domestic crimes are universally criminal – murder, for example – their universality derives not from international law, but from the fact that every state in the world has independently decided to criminalize them. The universality aspect of the definition, in turn, distinguishes an international crime from a transnational crime: although a transnational crime such as drug trafficking involves an act that international law deems criminal through a suppression convention, international law does not deem the prohibited act universally criminal, because a suppression convention does not bind states that decline to ratify it.

This definition of an international crime, however, leads to an obvious question: how exactly does an act become universally criminal under international law? Two very different answers are possible – and the goal of this article is to adjudicate between them. The first answer, what I call the “direct criminalization thesis” (DCT), is that certain acts are universally criminal because they are directly criminalized by international law itself, regardless of whether states criminalize them. Nearly every modern ICL scholar takes this position, as does the ILC.

The second answer, what I call the “national criminalization thesis” (NCT), rejects the idea that international law bypasses domestic law by directly criminalizing particular acts. According to the NCT, certain acts are universally criminal under international law – and thus qualify as true international crimes – because international law obligates every state in the world to criminalize and prosecute them. No modern ICL scholar has taken this approach, although intimations of it date back to Grotius.

Which thesis is correct? This article argues that it depends on whether we adopt a naturalist or positivist approach to international law. Although every international criminal tribunal has insisted that international crimes are positivist, not naturalist, phenomena, no extant theory of positivism – not even so-called “instant custom” – is capable of justifying the idea that certain acts are directly criminalized by international law. On the contrary: if we take positivism seriously, the NCT provides the only coherent explanation of how international law can deem certain acts to be universally criminal. Maintaining fidelity to the DCT, therefore, requires rejecting positivism in favour of naturalism – with all of naturalism’s inherent limitations.

I have given a number of talks on this topic over the past couple of years, and my positivist critique of direct criminalisation has always proved controversial. The argument in the essay has evolved substantially, but I doubt it will be any more popular. I still continue to be surprised that, with the exception of a somewhat skeptical Roger O’Keefe, no scholar and no court has ever attempted to provide a comprehensive defence of the idea that certain acts (international crimes) are directly criminalised by international law. The idea is simply taken for granted based on a single statement in the IMT judgment and on the work of the International Law Commission. Indeed, as I try to show, direct criminalisation seems to be little more than an article of faith — a naturalist artifact that has proven very useful for the ICL project, which is predicated on the superiority of international law over domestic law. Indeed, my suspicion, merely noted in the essay, is that ICL is inherently naturalist, at least in the form that has the kind of sovereignty-limiting muscle its acolytes believe it should have.

The essay is very long — 30,000 words, nearly 400 footnotes. I’ve submitted it for consideration by AJIL, but I am sure I will revise it substantially before it is ultimately published there or somewhere else. So comments and criticisms are, as always, most welcome.

The Media Spotlight on Investor-State Dispute Settlement Just Got a Lot Brighter

by Julian Ku

Buzzfeed’s Chris Hamby is out today with the first installment of a promised four-part investigative report into the system of investor-state dispute settlement (ISDS).  Like all such reports, it needs a spectacular headline and summary to draw clicks, and this one’s a doozy:

The Court That Rules the World

A parallel legal universe, open only to corporations and largely invisible to everyone else, helps executives convicted of crimes escape punishment.

The article itself is much more fair and thorough than this ridiculous headline teaser suggests.  It contains lots of original reporting on three ISDS cases involving Egypt, El Salvador, and Indonesia where Hamby says actual or threatened ISDS actions allowed corporate executives to escape criminal punishment.

I have no reason to doubt the accuracy of Hamby’s reporting on these cases. But I do have two initial somewhat critical reactions:

  • ISDS does give foreign investors leverage with host nations like Egypt or El Salvador that they wouldn’t otherwise have.  But I think Hamby overstates the amount of leverage a real or threatened ISDS claim creates.  Foreign governments don’t immediately comply with all ISDS awards and collecting judgments against foreign sovereigns, even weak ones like Egypt or El Salvador, is no easy task given those states’ sovereign immunity legal defenses and the difficulty of seizing state-owned assets.  Moreover, research shows that ISDS shows that states win more often than investors do, or they at least prevail as often as investors do. (See Footnote 3 to this letter defending ISDS as well as this EU Commission report).  ISDS may have allowed some foreign investors to unjustly avoid liability for their actions, but it is hard to know (and Hamby’s article cannot prove) that such cases represent a majority, or even a meaningful percentage, of overall ISDS actions.
  •  I don’t have a problem with Hamby reporting on these cases where it seems ISDS has been abused.  But I think it is important to keep the larger context of ISDS in mind.  What would be the impact of not having ISDS at all?  Would it make cross-border investment less common?  A lot less common?  Would the elimination of ISDS result in more corruption as foreign investors feel a need to pay protection money to host countries rather than resort to legal means?  Would the elimination of ISDS result in simply more cross-border investment among “rich” countries with well-developed domestic legal systems such as the US and Europe to the exclusion of “poor” countries with developing legal systems?  In other words, ISDS may be bad in many ways, and much abused (although I doubt the abuse is as common as Hamby intimates), but would eliminating ISDS be worse?

I am not an uncritical cheerleader for ISDS. I am doubtful, for instance, that ISDS adds much to the (now pretty much dead) proposed Transatlantic Trade and Investment Partnership (TTIP) between the EU and the US.  And I have questioned the constitutionality under US law of the ICSID Convention’s requirement of automatic enforcement of ISDS awards.   But I do feel ISDS critics should eventually have to answer the question: If not ISDS, then what? And will that non-ISDS future be better or worse? Hopefully, one of Hamby’s remaining three parts will address this important policy issue.

China’s Vice-Minister for Foreign Affairs Casually Slanders the South China Sea Arbitral Tribunal

by Julian Ku

I have been trying to move on from writing about the blockbuster UN Convention on the Law of the Sea arbitral award on the South China Sea.  As our readers know, I have written way too much on this topic lately.  But the Chinese government’s outrageous statements criticizing the award deserve one last post from me before I head out for a South China Sea-free vacation this summer.

In particular, I wanted to turn our readers’ focus to statements such as those made by China’s Vice-Minister for Foreign Affairs, Liu Zhenmin, shortly after the award was released.  In his remarks denigrating the arbitral tribunal, Liu implied that the arbitrators may have been bribed to adopt the views of the Philippines in the award.  Below is an excerpt of a transcript of his remarks:

Besides, who supported the Arbitral Tribunal? The arbitrators are paid by certain parties, but who? Maybe by the Philippines or other countries. This system is completely different from the ICJ or the ITLOS.

Judges of the ICJ or the ITLOS receive salaries from the UN for the sake of independence and impartiality. But these five judges of the Arbitral Tribunal are doing it for a profit, and their payments come from the Philippines and probably others, too. We are unsure about the details but they do provide paid services.

These comments are outrageous on so many levels.   Liu knows, or should know, that the arbitrators were paid by the government of the Philippines.  The tribunal announced publicly in its Rules of Procedure Article 31-33 that it was exercising its treaty powers under Article 7 of Annex VII to UNCLOS to require payment from both parties. But Liu also knows that the only reason the arbitrators received all of their compensation from the Phillippines government is because China refused to participate and refused to pay its share. If China had actually showed up, it would have been obligated under Article 7 of UNCLOS Annex VII to pay half of the fees.  There is no evidence, and Liu cites none, that any government other than the Philippines paid the arbitrators.  Liu also conveniently fails to mention his own government’s failure to pay its fair share.

Such payments are almost always made in advance of the award being issued, or even before the proceedings begin.  In other words, the payments could not influence the award’s contents because the Philippines did not know the content of the award before they made their payments.

This manner of compensating arbitrators is so standard and unremarkable that China’s own leading commercial arbitration organization, CIETAC, allows in Rule III.C.1 for one party to pay fees for the entire arbitration even if the other party does not show up and refuses to pay its own share.   This is essentially the situation that the Philippines found itself in.  It could continue to demand that the Tribunal seek money from China for its share of the expenses, or it could pay up. It chose to pay China’s share as well, and (as a reward) is now being lambasted by China for doing so.

Vice-Minister Liu is not a party hack who doesn’t know anything about arbitration.  He is, in fact, on the roster of arbitrators available for appointment by the Permanent Court of Arbitration and he is a arbitrator of the aforementioned CIETAC.  In other words, Liu knows exactly how arbitration works, and he is feigning ignorance in order to defame the character of the UNCLOS arbitrators.

In the same press conference, Liu also claimed that UNCLOS arbitration is some sort of aberration that has never happened before, unlike the more established ICJ or ITLOS systems.  On this point, Liu is flatly incorrect. In fact, there have already been seven UNCLOS arbitrations convened under the exact same rules that were applied to the Philippines/China arbitration.  In fact, as Liu well knows, the Chinese government freely chose arbitration instead of the ICJ or ITLOS for any dispute settlement under UNCLOS.

When acceding to UNCLOS, China could have chosen under Article 287 to specify the ICJ or ITLOS as its preferred forum for dispute settlement.  It did not do so, thereby forcing any dispute involving China to be sent to UNCLOS arbitration pursuant to Article 287(5).  In other words, the Chinese government made a conscious choice to avoid the ICJ and ITLOS for disputes arising under UNCLOS.  It is astounding for one of China’s leading diplomats to denigrate the integrity of a system of dispute settlement that China freely chose and in fact demanded.

Liu’s borderline defamatory remarks matter even if China and the Philippines eventually work out a settlement of their dispute.  Liu has knowingly denigrated the integrity of five arbitrators – three of whom continue to sit on the International Tribunal for the Law of the Sea – using facts he almost certainly knows are false. As the esteemed Professor Jerome Cohen of NYU has noted, in many jurisdictions, this could be enough to constitute defamation or slander.  Since Liu would have immunity for his remarks, perhaps the softer sanctions could be imposed, such as demanding his resignation from the PCA’s roster of arbitrators or perhaps his removal from the position as an Associate Member of UNIDROIT.  At the very least, this sort of casual character assassination should not be forgotten nor forgiven.

Assessing the Fallout from the South China Sea Award

by Julian Ku

In addition to my posts here (see below), I have several  pieces over the last week discussing different aspects of the South China Sea award up at various outlets across the web universe (I know, I know, I need to stop writing about this topic, but indulge me just a little longer).  To briefly recap my various takes, here is a quick summary:

As a legal matter, China lost every substantive issue before the South China Sea arbitral tribunal.  I argued here at Lawfare that the award “dramatically widens” the scope of future more aggressive U.S. freedom of navigation operations by, for instance, eliminating any legal basis for a Chinese territorial sea around its artificial island on Mischief Reef.  Since that reef is also within the Philippines’ exclusive economic zone, the U.S. Navy has (as a legal matter) carte blanche to sail or fly within 500 meters of what is now an artificial island in clear violation of Philippines’ rights under UNCLOS.

On the other hand, I warned here in The National Interest that the arbitral award does not require China to leave the South China Sea or the Spratlys in particular.  The award leaves open the legal possibility for China to claim a series of 12 nautical mile territorial seas around various rocks in the island group. This means that even in China complied with the award, it would have the legal right to maintain a robust presence there.

Taking a step back, I also blamed China’s government (in this piece for Quartz) for exacerbating the negative impact of the award by refusing the participate in the proceedings and then starting a global media war against it.  This drew much more attention to the award than would have otherwise been the case.

Finally, over at Foreign Policy, I offered a very tough critique of the role of Chinese international law scholars in bolstering the Chinese government’s claim that it can legally ignore the arbitration.  It is not so much that Chinese international legal scholars were wrong, but that their unanimity weakens their long-term credibility on the global stage.  I contrast the unanimity within China’s academic community with the much-divided U.S. academic reaction to the U.S. government’s refusal to comply with the ICJ’s Nicaragua judgment in 1986.

For any Chinese-language readers out there, I have been engaging in a debate (thanks to the fabulous translation work of my student Weitao Chen) at the Financial Times (Chinese edition) with Professor Liu Haiyang on China’s obligation under UNCLOS Article 288(4) to accept the arbitral tribunal’s determination of its own jurisdiction. Here was my initial essay, here is Prof. Liu’s response, and here is my rebuttal.  Annoyingly, it appears my initial essay has been censored in China, which must mean I am making good arguments!

I am not done with discussing this award, but I do need to get a life at some point. I am also trying to incorporate all of this into a larger project on China’s overall relationship with international law.  Certainly, this whole dispute will be a significant chapter in my book!