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

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

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

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

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

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

As this Voice of America report notes, the Philippine government is determined to forge ahead with its UNCLOS arbitration, even though China is refusing to participate in the arbitration. This seems to be a sensible strategy, at least from a legal point of view, because it is plainly within its legal rights to do so.

But would a one-party arbitration be futile?  The VOA quotes Prof. Myron Nordquist of UVA on this point:

But how would one-party arbitration work, exactly? Professor Myron Nordquist of the Center for Oceans Law and Policy at the University of Virginia calls the situation “quite bizarre.”

“For one thing, it is doomed to failure because if the party won’t consent to the arbitration there is then no enforcement,” said Nordquist. “How would they expect a country that didn’t want to have a dispute settled by third parties to feel in any sense bound by a decision where they didn’t even participate?”

I agree the situation is odd, but it is not unprecedented.  The Annex VII provisions clearly contemplate situations where one party refuses to appoint an arbitrator by giving the power to the President of ITLOS to appoint the rest of the tribunal.  Moreover, general international arbitral practice is to allow arbitrations to proceed even when one party (like China) boycotts the whole proceeding. (See Gary Born, International Commercial Arbitration, at 449-50). In such cases, the tribunal typically continues to give notice to the boycotting party, and will reach a reasoned award based on its own assessment of the law and facts. It does not typically simply accept the participating party’s submissions as true.

Moreover, I take issue with Professor Nordquist’s conclusion that the arbitration is “doomed to failure because if the party won’t consent to the arbitration there is then no enforcement.”  His statement embeds a variety of (understandable) misunderstandings about the nature of Annex VII arbitration.

First of all, let’s be clear.  China has already consented to Annex VII arbitration, at least with respect to allowing a tribunal to be constituted and to determine whether it has jurisdiction in a dispute. China consented when it acceded to UNCLOS. All China has done so far is refuse to appoint an arbitrator.

Second, as any private international commercial arbitrator could tell you, consent to an arbitration does not in any way guarantee enforcement.  Indeed, in private commercial arbitrations, judicial enforcement proceedings are common and necessary to force parties to comply with arbitral awards.

To put this another way, if China had participated in the arbitration by appointing an arbitrator, I don’t think it would have affected its likelihood of complying with any arbitral award.  UNCLOS does not have any sanctions regime akin to, say the Dispute Settlement Understanding of the WTO, so China would not face any formal sanctions if it failed to comply with an arbitral award.

All of this is a long way of saying, the decision by the Philippines to continue with the arbitration (sans China) is not really any more futile than if China had fully participated.  In both situations, China would likely not have complied  with any unfavorable award.  Any award is only going to be useful to rally other countries to the Philippines’ side as well as in marshaling global public opinion to its cause (as Prof. Nordquist does note).  Indeed, it seems that the Philippines’ American lawyer is banking on the negative reputational effects of this case eventually pushing China to come around to participate in the arbitration. (FWIW, I am skeptical that the Chinese government can be manipulated this way, especially since domestic public opinion in China leans in the opposite direction.)

For this to work, though, the Philippines has got to try to educate the global media more effectively. Headlines from USA Today, for instance, describing China as rejecting “UN Mediation” only make things murkier for them.  China is going to play the “we-just-want-to-negotiate-unlike-you-troublesome-Filipinos” card.  The Philippines needs to play the “we-are-just-asking-for-the-arbitration-that-you-consented-to” card.  So far, they are not doing all that well.

Breaking news:  China has rejected arbitration under Annex VII of the UN Convention on the Law of the Sea with the Philippines, dealing a heavy blow to the future of dispute settlement under UNCLOS (h/t China Law Prof Blog).  According to this China Daily report,

“Chinese Ambassador to the Philippines Ma Keqing had an appointment with officials from the Philippines’ Foreign Ministry on Tuesday and returned a note and related notice after expressing China’s rejection,” spokesman Hong Lei said at a daily press briefing.

“The note and related notice not only violate the consensus enshrined in the Declaration on the Conduct of Parties in the South China Sea (DOC), but are also factually flawed and contain false accusations,” Hong said.

As I have noted here (and as Prof. Clarke notes as well), the Philippines is now within its rights to ask the President of the International Tribunal for the Law of the Sea to appoint all four remaining arbitrators for the Annex VII tribunal.  Once the President of ITLOS has done so, the duly constituted arbitral tribunal may act even without China’s participation.

Upon reflection, I am not really surprised China has decided to walk away from the Annex VII tribunal.  As I noted earlier, such tribunals have tended to combine their considerations of jurisdiction with those of the merits.  They have not generally bifurcated their proceedings, nor do they seem to have any obligation to do so.

This is a problem for China because while their jurisdictional challenge is pretty strong, their argument on the merits is undeveloped and fuzzy.  They have never exactly spelled out what they mean by having “indisputable sovereignty” over the South China Sea.   Do they mean it is a territorial sea? Or that they have general economic rights similar to an Exclusive Economic Zone?

So I am not shocked that China is walking away here. The question for the Philipppines is: what next? Do they continue with the Annex VII arbitration without China? Well, their DFA seems ready to move forward without China.  But would any award issued by this tribunal be pretty meaningless?

I’m not sure. I think that any award there would have little impact on China, but it should be useful in helping rally allies in Southeast Asia, especially within ASEAN.  It is not going to stop China much, but an award that undermines the legality of China’s claims is certainly better to have than not to have. But it is not nearly as much as it would have been if China had played ball (and lost).

China’s statement contains a curious and hard to understand argument.  According to the Chinese foreign ministry, the Philippines arbitration claim “complicates” resolution of conflicts in the South China Sea in violation of the Declaration on Parties’ Conduct in the South China Sea.    Presumably, China is referring to Article 5 of the Declaration:

5. The Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.

Does making an arbitration claim under Annex VII “complicate or escalate disputes”?  Given the whole context of Paragraph 5, I am highly doubtful of this argument. One must also note that the previous paragraph instructs all parties to

undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea;

The explicit reference to UNCLOS (albeit the 1982 version) doesn’t really add much weight to the claim that the the Declaration somehow prohibits parties from resorting to UNCLOS arbitration.  If anything, it goes the other way.  Given that the Declaration is not technically binding under international law anyway, let’s just say this is the weakest of a series of weak arguments trotted out by China in this dispute.

So let’s just call this what it is: China is thumbing its nose at UNCLOS and it has now dealt a  serious, near fatal blow, to the UNCLOS dispute settlement system, at least in its ability to resolve serious disputes involving major powers.  UNCLOS arbitration is not going to restrain China in any significant way. At least, China doesn’t think it will pay any serious costs to walking away, which is why it is willing to accept the equivalent of a default judgment.

From the perspective of the United States, the China-Philippines episode is a cautionary tale. On the one hand, it suggests that those critics of UNCLOS worried about the impact of Annex VII arbitration tribunals need not fear them all that much.  On the other hand, this episode should put an end to the always silly argument that the US needed to join UNCLOS in order to use UNCLOS against China.  That was never really going to work, and we now have ample evidence.

As far as I can tell, the Chinese government continues to pretend as if the Philippines’ Law of the Sea arbitration claim doesn’t exist.  Articles like this one suggest the Philippines government continues to wait for some official or unofficial Chinese response.  The February 22 deadline for China to appoint an arbitrator is fast approaching.

There are obviously bigger things going on in the world, and in East Asia (the North Korea nuclear tests come to mind).  But it is worth noting that I ran across, for the first time, an article in the Chinese press discussing the arbitration with sophistication and a very good understanding of the Annex VII process.  Published in the journal “瞭望新闻周刊“ or “Outlook Newsweekly”, the article describes the views of an unnamed expert advising the Chinese government not to take the Filipino arbitration claim lightly.

The expert offers a few considerations for the Chinese government.  Among other things, the expert notes that the Philippines is using this arbitration to gain support and sympathy from its neighbors (Vietnam is supporting) and its allies (US Secretary of State Kerry and the EU Parliament head support it). The claim also hypes suspicions of China at the United Nations and elsewhere.

More interestingly, the expert further notes that if China does nothing, the arbitration will still continue with the Japanese ITLOS president appointing the rest of the members.  (Maybe the expert was reading Opinio Juris!).  In any event, the expert advises the Chinese government to appoint an arbitrator and work hard to convince to arbitration tribunal to dismiss for lack of jurisdiction.  Moreover, China can at any time during the arbitration work out a settlement agreement with the Philippines.  (There is more to the article, but this is the key advice).

So is this is a sign of where the Chinese government is going? It seems unlikely that the musings of an unnamed expert will be very important, but who knows? At the very least, it seems as if there is some thinking on this issue going on in China.  The 30 day clock continues to tick. Only six days left!

I used to blog regularly about the Whale Wars, my name for the ongoing struggle between Japanese Whalers and those groups devoted to protecting whales.  But I stopped almost three years ago when Australia filed its case against Japan in the ICJ, since nothing important seems to have happened since then.  (Did we really need 22 months for written proceedings, when the reply and rejoinder weren’t even permitted? And then a decision to let New Zealand to intervene, and no doubt they need time to file papers.  Someone, wake me up when a decision or hearing is in sight!)

I used to watch TV regularly, but stopped a few years ago in an effort to set a good example for my daughter. But I regret that now because, I might have run across this program on Animal Planet, Whale Wars, about the “heroic” Sea Shepherd group that is engaged in a decade long effort to harass or even block Japanese whalers.  (Strangely enough, the “heroic” lawyers duking out these issues at the ICJ don’t rate their own show, or even make it into this show as cameos.  It’s because they need 22 months to file two measly memorials!).

As Jessica noted yesterday, the Whale Wars (as TV programming) came to an abrupt end yesterday when the US Supreme Court denied an emergency petition to overturn an injunction by the U.S. Court of Appeals for the Ninth Circuit enjoining the Sea Shepherd from coming within 500 feet of active Japanese whalers.

I don’t have access to the papers filed in the Supreme Court petition, but the jurisdictional argument described in the news seems pretty sketchy, certainly as to personal jurisdiction.  I don’t think the Japanese whalers’ merits claims are very persuasive either, but given that the star of the show is based in the Seattle, and that the organization is based in Seattle, the fact that it uses an australian affiliate can’t possibly be enough to avoid personal jurisdiction in Seattle courts.

In any event, I am pleased the Whale Wars has made it into US courts.  I look forward to re-opening my coverage of the various disputes, as the US courts will seem quite a “rocket docket” when compared to the glacial pace of the ICJ.

For those of you wondering how seriously the Chinese media is taking the Philippines’ arbitration claim against China over the South China Sea (there must be at least two of you out there), here is an illustrative cartoon from a Chinese newspaper, “JingChu Times”, in Central China (although originally from another publication).

Although one doesn’t need to read Chinese to get the jist, here is my attempt to translate anyway.

The Foot is labeled: “Chinese Territory”

The Fish biting the Foot’s toe is labeled: “The Philippines”.  The Fish is holding a sign with the words: “Mine!”.

Yes, this Annex VII UNCLOS arbitration claim is really sending shock waves throughout China.

[I know that what this blog needs is yet another post on the China-Philippines UNCLOS Arbitration! We aim to please!]

Steve Groves of Heritage asks in the comments to my prior post: What happens if China simply refuses to show up at the arbitration? Can an arbitral tribunal even be formed to rule on jurisdiction?

This is something that I’ve wondered too, and then I realized Annex VII of UNCLOS appears to settle this issue as well.  The key provision is Article 3 of Annex VII. Under Art. 3(b), the initiating party appoints an arbitrator, which the Philippines has already done.  Then,

(c) The other party to the dispute shall, within 30 days of receipt of the notification referred to in article l of this Annex, appoint one member to be chosen preferably from the list, who may be its national. If the appointment is not made within that period, the party instituting the proceedings may, within two weeks of the expiration of that period, request that the appointment be made in accordance with subparagraph (e).

(Emphasis added.).  Turning to Subparagraph (e):

(e) Unless the parties agree that any appointment under subparagraphs (c) and (d) be made by a person or a third State chosen by the parties, the President of the International Tribunal for the Law of the Sea shall make the necessary appointments. …

(Emphasis added). Essentially, this means the President of ITLOS can fill out the rest of the arbitral tribunal if China tries to boycott, by appointing the remaining four members.  As Craig Allen of the University of Washington pointed out to me in an email, the current President of ITLOS is Shunji Yanai, a well-respected diplomat and jurist.  That is to say, a well-respected Japanese diplomat and jurist.  I’ve met President Yanai briefly, and he is a very smart and well-accomplished guy.  But Japan is just not on China’s BFF list right now.  China’s Weibo Internet commenters might well just blow up if this happens.

Professor Allen suggests that the President of ITLOS might, before appointing arbitrators, consider the jurisdictional objection and refuse to appoint a tribunal. I think this is a plausible, but not the most natural reading of Annex VII, Art. 3.  Professor Allen also raises a good point: China’s best friend here might well be the United States, which has a strong interest in seeing an expansive reading of the Article 298 exemptions.

In any event, the few Annex VII arbitral tribunals that have been constituted have generally not hesitated to rule on their own jurisdiction.  See Barbados v. Trinidad, or Guyana v. Suriname. (For a full list, see here).  Even worse from China’s perspective, these Annex VII arbitral tribunals issued their jurisdictional decision at the same time as they issued the award on the merits.  They don’t have to do so, and they can bifurcate the proceedings to address jurisdiction first.  But they don’t have to.

Would one of the journalists forced to sit through Chinese Ministry of Foreign Affairs press briefings please ask the spokesman to address the arbitral tribunal question?  Or at least, ask them again? Will China play the arbitral tribunal game and appoint someone by February 21?  Or will they let President Yanai appoint the tribunal for them?   The 30-day clock is running.

This article from the Global Times, a hawkish state-controlled newspaper in China, probably reflects a little bit of the official Chinese view on the Philippines UNCLOS claim. It also contains this troubling bit of analysis, from a Chinese scholar:

The international court would not take the case without agreements from all parties involved, Dong Manyuan, a researcher at the China Institute of International Studies, told the Global Times.

Uh, yes, that’s true in a general sense.  But China has already agreed to allow an Article 287 arbitral tribunal to take this case and at least to determine jurisdiction. Article 288(4) would seem to be the last word on this point.

4. In 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.

Sorry, Global Times! China is stuck with this case, at least as a legal matter, and at least through the jurisdictional phase. I hope the Chinese government is getting better legal advice than this. China could boycott the arbitration, but they would be in a clear violation of Article 287 and Article 288 of UNCLOS.  Will it dare to do so?

China’s initial reaction to the Philippines’ decision yesterday to file an arbitration claim has been to stick to its guns.  From the BBC:

On Wednesday, Chinese foreign ministry spokesman Hong Lei told journalists that China has “indisputable sovereignty over the South China Sea islands and adjacent waters, which has abundant historical and legal grounds”.

“The key and root of the dispute over the South China Sea between China and the Philippines is territorial disputes caused by the Philippines’ illegal occupation of some of the Chinese islets and atolls of the Spratly Islands,” he said.

He said China had been “consistently working towards resolving the disputes through dialogue and negotiations to defend Sino-Philippine relations and regional peace and stability”.

Some observers, quoted here by the VOA, have suggested that China will simply not participate in the UNCLOS arbitration.  I think this makes sense from a strategic perspective, but it is hard to understand how that would work from a legal perspective.

As a legal matter, China has an obligation to participate in the UNCLOS arbitration by selecting an arbitrator, and then a schedule for the proceedings.  It will then file a challenge to the UNCLOS arbitration tribunal’s jurisdiction (an argument I believe it has a good chance to win).  If China simply doesn’t show up, then it would be in clear violation of its UNCLOS obligations.

China has an interesting choice here. It could participate in the arbitration, and if it loses on jurisdiction, simply withdraw and declare that it won’t abide by the tribunal’s decision.  Or it could litigate to the merits, and then if it loses, simply refuse to comply with the arbitral tribunal’s award.

None of these potential arbitral results are really all that attractive, from China’s perspective. But defaulting on the arbitration is not all that attractive either.  What China does here will tell us a lot about China’s commitment to its strategic goal of controlling the South China Sea, as well as its level of commitment to UNCLOS and international dispute resolution.

The Senkaku / Diaoyu islands, a series of rocky, uninhabited outcrops, are being claimed by Japan, China, and Taiwan, amongst others, both for historical reasons, and because of their potential value in anchoring sovereignty over natural resources like oil.   Some have predicted the dispute may be a military “flash point” in 2013.

As Duncan noted last month, China made a partial submission to the Commission on the Continental Shelf in December, identifying the outer limits of China’s continental shelf.   Reactions of neighboring countries to China’s submission are starting to emerge.   Last week, Korea made a partial submission to the Commission seeking to identify the outer limits of Korea’s continental shelf, which, unsurprisingly, overlap with China’s claim.  The map here is illustrative.

Moreover, in a note dated December 28, 2012, Japan asked the Commission not to consider China’s submission because the distance between the coasts in the area covered by the submission is less than 400 nautical miles, and pursuant to UNCLOS Article 83, the delimitation must be effected by agreement of the parties.  As a result, Japan is maintaining its position that the islands are under Japan’s control and are an inherent part of its territory.

Reactions from other countries with interests in the area (Vietnam, the Philippines and Brunei for example) may be forthcoming.

Despite the overlap between continental shelf claims and sovereignty over the islands however, the  Commission’s direct role in the dispute will be limited.  The Commission makes independent recommendations that are based on technical and scientific data.  It is not competent to consider the merits of division lines between states with overlapping claims, as this article by Coalter Lathrop explains.  As a result, the parties’ submissions to the Commission are without prejudice to their strategy in the larger political contest over sovereignty to the islands.

Looking ahead however, if the sovereignty dispute evolves into a delimitation dispute between the various parties, it could be resolved in one of three ways: military action, political negotiations or international dispute resolution.  To date, most seem to assume that international dispute resolution (and, I might add, international law) will not have much of a role to play.  Although parties to the UN Law of the Sea Convention (and most of the relevant contenders in this dispute are parties to UNCLOS) are required to submit their disputes to one of four methods of compulsory dispute resolution pursuant to Article 298, international jurisdiction in this case is complex because of the number of countries potentially involved, the patchwork of treaty commitments and reservations over dispute resolution mechanisms and law of the sea matters, and the “cultural” hesitance of some of the key players to submit the dispute to an international tribunal. (OJ readers, please chime in on these complexities!)

Nonetheless I think the November 19, 2012 decision of the International Court of Justice (ICJ) in the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia) should give the parties to the S/D dispute confidence in the role of international dispute resolution mechanisms.   In that decision, the ICJ found that Colombia has sovereignty over disputed Caribbean islands in the San Andres Archipelago.  The Court also found Nicaragua has sovereignty over a disputed maritime area of approximately 75,000 square kilometers.   In essence, the Court tried to reach an equitable decision by giving one country sovereignty over the islands and another sovereignty over the marine area. Although the judgment was initially met with anger in Colombia, even leading it to denounce the Bogota pact which gave the ICJ jurisdiction in the first place, a few days later Bolivia suggested that it might submit a brewing dispute with Chile to the ICJ, suggesting that the authority of the Court has not been diminished in the region.

The ICJ has a long and impressive track record on maritime delimitation cases.  It has been seized of 15 such cases around the world, including an ongoing dispute between Peru and Chile.  Moreover, compliance rates with ICJ cases are generally high because the ICJ has limited, consent-based, jurisdiction.  Third party alternatives to the ICJ are arbitral tribunals, and the International Tribunal of the Law of the Sea (ITLOS), which released its first maritime boundary decision in March 2012, in the Myanmar v. Bangladesh case.

All indicators suggest that the need for dispute resolution in maritime matters will increase.  As countries get bigger, so to speak, by defining their maritime entitlements like the extent of their continental shelf, it is not surprising that they will start to bump up against one another.  With 180 unresolved maritime disputes around the globe, dispute resolution is becoming increasingly appealing when bilateral negotiations fail or stall.

Countries in the South East China sea dispute should reconsider their circumspection towards international dispute resolution.  We need an international court with international jurisprudence in particularly the type of situation where regional tensions run high.  It is surely better than the alternative:  protests, military exercises and potentially conflict at sea.

I’m gearing up for a Spring Semester teaching at Temple’s Tokyo campus.  As part of my preparations, I’ve begun to read-into some of the maritime boundary disputes between China and Japan that have caused so much friction between the two nations of late.  Recent news reports have emphasized (i) China’s moves by air and sea to challenge Japanese control over waters surrounding what the Japanese refer to as the Senkaku Islands (or the Diaoyu Islands if you’re on China’s side) and (ii) how the new Japanese government may be more hawkish in responding to such measures.  So, perhaps it’s not surprising that China’s now also beginning to push its case legally, invoking UNCLOS’s provisions on delineating continental shelf rights beyond its 200 nautical mile Exclusive Economic Zone.

Specifically, UNCLOS Article 76 provides in paragraphs 7-9:

7. The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by coordinates of latitude and longitude.

8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.

9. The coastal State shall deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. The Secretary-General shall give due publicity thereto.

China submitted its initial continental shelf claim in 2009.  This past Friday, December 14, China provided an additional “partial submission” on its claims to the East China Sea.  Here’s the key take-away from that submission:

The geomorphological and geological features show that the continental shelf in the East China Sea (hereinafter referred to as “ECS”) is the natural prolongation of China’s land territory, and the Okinawa Trough is an important geomorphological unit with prominent cutoff characteristics, which is the termination to where the continental shelf of ECS extends.  The continental shelf in ECS extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea of China is measured.

You can access the full text of China’s submission here (and, if you’re interested, you can also read  Japan’s earlier submissions or see here for the Japanese Foreign Ministry’s take).

I don’t hold out much hope that UNCLOS or the Continental Shelf Commission will actually determine a resolution to this on-going dispute.  But, I am hopeful that China’s move to legal argumentation may give both sides a forum in which cooler heads can prevail, in stark contrast to other existing fora where things have gotten quite heated (see, e.g., the Japanese government’s move to buy the islands, or the scrambling of military aircraft to respond to Chinese vessels transiting the territory).  In any case, the legal and political ramifications of this dispute clearly will bear close watching.

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington in Seattle.]

On December 15, 2012, one phase of the dispute between the Argentine Republic and the Republic of Ghana over the “seizure” of the Argentine frigate ARA Libertad while in a Ghanaian port came to an end, when the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany ordered Ghana to “forthwith and unconditionally release the frigate ARA Libertad” and to “ensure that the frigate ARA Libertad, its Commander and crew are able to leave the port of Tema and the maritime areas under the jurisdiction of Ghana, and … that the frigate ARA Libertad is resupplied to that end.” (See Order of 15 December 2012).

The order came just one month after Argentina filed its application for provisional measures with the ITLOS. The tribunal’s decision—which should receive a warm welcome in the Pentagon—sends a clear message on the principle of sovereign immunity of warships and the readiness of ITLOS to enforce that immunity even when the warship is in the port or internal waters of another state—at least if the involved states are party to the 1982 LOS Convention.

The dispute between the two states has its roots in Argentina’s 2001 default on roughly $100 billion in sovereign debt, reportedly the largest sovereign default in history. NML Capital Investments, which owns some $1billion in Argentina’s sovereign debt, obtained judgment in a New York federal district court for $284 million in 2006. The U.K. Supreme Court later upheld NML’s right to execute its judgment against Argentina’s assets in the U.K. (NML Capital Ltd  v Republic of Argentina, [2010] EWCA Civ. 41, aff’d, [2011] UKSC 33), a decision extensively relied on by agents for Ghana during oral argument at the ITLOS.