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Law of the Sea

Someone (Prof. Stefan Talmon) Finally Makes An Argument In Favor of China in the Philippines UNCLOS Arbitration

by Julian Ku

One of the most frustrating things about China’s response to the Philippines arbitration has been the brevity of its legal discussion and analysis.  In particular, I’ve long thought that China had a pretty good argument that the Annex VII UNCLOS arbitral tribunal does not have jurisdiction over the dispute since, in many ways, territorial disputes are at the heart of the Philippines’ case.

But neither the government nor Chinese scholars have offered much flesh to this argument.  The closest statement I’ve seen was Judge Xue Hanqin’s impromptu remarks at the Asian Society of International Law conference last fall and a very brief Global Times essay.. But all that has now changed due to a book chapter  released by Professor Stefan Talmon of the University of Bonn.  From his abstract:

The chapter examines whether the Tribunal has jurisdiction to hear the case, whether the claims brought by the Philippines are admissible and whether there are any other objections which the tribunal will have to decide as a preliminary matter. It aims to offer a (not the) Chinese perspective on some of the issues to be decided by the Tribunal. The chapter is to serve as a kind of amicus curiae brief advancing possible legal arguments on behalf of the absent respondent. It shows that there are insurmountable preliminary objections to the Tribunal deciding the case on the merits and that the Tribunal would be well advised to refer the dispute back to the parties in order for them to reach a negotiated settlement.

I’ve only taken a quick look at Prof. Talmon’s pretty comprehensive discussion, and it really does read like an “amicus brief” for China on the question of jurisdiction.  I will have to consider more carefully Prof. Talmon’s claim that the 9-Dash Line claim can fit into the “historic waters” exception to jurisdiction, but overall it seems like a very careful and persuasive treatment.

For the First Time, U.S. Says China’s South China Sea Nine Dash Line is Inconsistent with International Law

by Julian Ku

As Jeffrey Bader of Brookings notes, the U.S. government has, for the first time, publicly rejected the legality of China’s “Nine Dash Line” claim in the South China Sea (for a little background on the unusual Nine Dash Line, see an earlier post here). This is a semi-big deal as it shows how the US is going to use international law as a sword to challenge China’s actions in this region.

During testimony before Congress, U.S. Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russel stated:

Under international law, maritime claims in the South China Sea must be derived from land features. Any use of the ‘nine-dash line’ by China to claim maritime rights not based on claimed land features would be inconsistent with international law. The international community would welcome China to clarify or adjust its nine-dash line claim to bring it in accordance with the international law of the sea.

It is actually surprising that the U.S. government has never actually publicly stated this argument before, since the Russel statement fits comfortably within the U.S. government’s long-standing positions on the nature of maritime territorial claims.  And China could not have been unaware of US views on its 9-dash-line claim. But the U.S. also likes to repeat that it takes no position on any sovereignty disputes, and since the Nine Dash Line is sort of a sovereignty claim, it has always been a little unclear whether the US was neutral on the Nine-Dash Line as well.

Russel’s statement ends this ambiguity, and also offers more explanation on how the US “neutrality” in sovereignty disputes does not mean that it has no view on how those disputes would be resolved.

I think it is imperative that we be clear about what we mean when the United States says that we take no position on competing claims to sovereignty over disputed land features in the East China and South China Seas. First of all, we do take a strong position with regard to behavior in connection with any claims: we firmly oppose the use of intimidation, coercion or force to assert a territorial claim. Second, we do take a strong position that maritime claims must accord with customary international law.

Again, I can’t imagine this is a new US government position, but it is useful to make it clear publicly.

By tying itself to customary international law, the U.S. is challenging China to try to fit its Nine Dash Line into the legal framework created by the UN Convention on the Law of the Sea.  Even some clarification from China as to the legal basis for its Nine Dash Line would be helpful, since it would shift the burden on China to explain its legal position.

Moreover, the US government is also offering a legal roadmap for other countries that are not claimants in the region. It is hardly a controversial legal position, and should be fairly easy for the EU, Canada, or Australia to adopt (assuming they don’t mind tweaking China).

Having wedded itself to international law, the US will now have to see whether China will start making non-legal claims or even noises about withdrawing from UNCLOS.  The law definitely is not on China’s side here, but that doesn’t mean that China is going to back down in the SCS.

Will Ratifying UNCLOS Help the U.S. Manage China? I Doubt It

by Julian Ku

A subcommittee of the  U.S. House of Representatives’ Foreign Affairs Committee held a much-needed hearing to educate themselves on China’s recent activity in the East and South China Seas.  Professor Peter Dutton of the Naval War College, along with two other experts on Asian affairs, gave interesting and useful testimony on the nature of China’s maritime disputes with Japan, the Philippines, Vietnam, and other Asian countries.

There is a lot of interesting stuff here, but my attention was particularly caught by Professor Dutton’s recommendation (seconded by Bonnie Glaeser of the Center for Strategic and International Studies) that the U.S. ratify the UN Convention on the Law of the Sea (UNCLOS) as part of a multifaceted strategy to manage China’s sort-of-aggressive strategy to expand its power and influence in the region.  Here is Professor Dutton’s argument:

Accordingly, to ensure its future position in East Asia, the United States should take specific actions to defend the international legal architecture pertaining to the maritime and aerial commons. Acceding to the United Nations Convention on the Law of the Sea and once again exercising direct leadership over the development of its rules and norms is the first and most critical step. The Department of State should also re-energize its Limits in the Seas series to publicly and repeatedly reinforce international law related to sea and airspace. A good place to begin the new series would be with a detailed assessment of why international law explicitly rejects China’s U-shaped line in the South China Sea as the basis for Chinese jurisdiction there. Others could be written to describe why China’s East China Sea continental shelf claim misapplies international law and why China’s ADIZ unlawfully asserts jurisdiction in the airspace. My sense is that East Asian states, indeed many states around the world, are desperate for active American leadership over the norms and laws that govern legitimate international action.

I understand the force of this argument. The U.S. already adheres the key principles in UNCLOS, so joining UNCLOS will allow the U.S. to push back more effectively against China’s aggressive and expansionary activities.

But is there really any evidence that formal accession would change China’s view of the U.S. position on UNCLOS issues?  China is already a member of UNCLOS and other countries (like Japan and the Philippines) are also members of UNCLOS. But I don’t think UNCLOS has really bolstered their effectiveness in pushing back against China.  Moreover, as Professor Dutton explains, China has a radically different interpretation of its authority to regulate foreign ships and aircraft in its Exclusive Economic Zone under UNCLOS.  How will joining UNCLOS help the U.S. change China’s interpretation of UNCLOS?

As a practical matter, UNCLOS does have a way of compelling member states to conform their interpretations: mandatory dispute settlement in the International Tribunal for the Law of the Sea or in Annex VII arbitration.  But as China and Russia have demonstrated in recent years, these mechanisms are not likely to be a serious constraint, especially on questions that touch sovereignty (which is how China frames most of its activities).  I suppose if the U.S. joins UNCLOS, and subjects itself to UNCLOS dispute settlement, that might make a difference.  But I don’t think it would be a very large one (after all, Japan, China, and the Philippines are all already subject to UNCLOS dispute settlement, which has accomplished little so far).

I should add that the U.S. joining UNCLOS is hardly the most prominent of Professor Dutton’s recommendations.  His (and his co-panelists) had lots of good strategic policy recommendations.  I think the law may be important here, but I am skeptical that it will be as effective as he (and many analysts) are hoping.

Lieblich Guest Post: Yet Another Front in Israeli/Palestinian Lawfare–International Prize Law

by Eliav Lieblich

[Eliav Lieblich is an Assistant Professor at the Radzyner Law School, Interdisciplinary Center (IDC), Herzliya; his book, International Law and Civil Wars: Intervention and Consent, has been recently published by Routledge]

While opinions are split whether U.S. Secretary of State John Kerry will be able to bring, in his recent efforts, any progress to the stalemated Israeli-Palestinian conflict, it seems that Israel has recently decided to take the conflict back to the 19th century – at least legally. This time, we are talking about the revival of none other than age-old maritime prize law – a traditional body of the international law of war dealing with the belligerent capture of vessels and cargos.

The importance of maritime prize law peaked in the American Civil War, and steadily declined through the two World Wars into virtual disuse in the last decades. However, on the last week of December, the District Court of Haifa, sitting in its capacity as the Admiralty Court of Israel, held a first hearing in prize proceedings initiated by the State of Israel against the Estelle, a Finnish vessel, intercepted by the Israeli navy while attempting to symbolically breach the Gaza blockade in late 2012 (see the story, in Hebrew, here). The state requests the court to condemn the Estelle, which carried cement and toys, based on jurisdiction derived from the British Naval Prize Act of 1864 (!), and conferred to prize courts in Mandatory Palestine by the British Prize Act of 1939. At the time, Britain was interested in conferring such jurisdiction to courts in its colonies, protectorates and mandates in order to facilitate the condemnation of Axis maritime prizes captured in nearby waters. This power was never before exercised by Israel, which inherited the mandatory legislation upon its creation in 1948.

While the British prize laws are in essence jurisdiction-conferring rules, and deal mostly with procedure, the substantive norms of international prize law are derived from customary international law. Here lie the interesting aspects of the case. It is common knowledge, among those dealing with the nitty-gritty of IHL, that the process known as the “humanization of international humanitarian law” – as famously put by Theodor Meron – has generally not trickled to the law on maritime warfare. Prize law is perhaps a key example for this phenomenon.

For instance, while in ground warfare (and occupation) private property cannot be seized or destroyed absent pressing military necessity (for instance, Articles 23(g) & 52 of Hague Convention IV), private ships can be captured and condemned through proceedings in front of the seizing state’s prize courts, just for flying the enemy state’s flag. Essentially, thus, prize law doesn’t differentiate between the “enemy” state and its individual citizens, as modern IHL otherwise purports to do. In addition, “neutral” vessels can be condemned for carrying “contraband” – defined unilaterally by the capturing state – or, as in the case of the Estelle, for attempting to breach a blockade (for an attempt to state the customary international law on these issues see Articles 93 –104, 146, of the 1994 San Remo Manual). It should be added that the concept of blockade in itself seems like an outlier in contemporary law, since it can be looked upon, through a human rights prism, as a form of collective sanction against civilians.

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Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)

Why the U.S. is Not Invoking International Law to Oppose China’s ADIZ

by Julian Ku

China’s East China Sea Air Defense Identification Zone (ADIZ) has spawned tons of media commentary, so much so that I have had little to add and can barely keep up with all the coverage. Still, there is one small legal point that bears some further discussion.  While I think the U.S. is correct as a matter of policy to push back against China’s ADIZ, the legal framework underlying the U.S. position is awkward and borderline incoherent.  In fact, the confusing U.S. legal position may explain why the U.S. is not sympatico with Japan on China’s ADIZ.  Let me explain.

It is worth noting that U.S. has not condemned China’s ADIZ as a violation of international law. Instead, the U.S. has called it “unacceptable” and a change in the “status quo”.  Meanwhile, the Chinese have wielded international law as a rhetorical weapon on their side, by citing the U.N. Charter from the outset.  This may seem odd, but in fact, the Chinese are sort of right about this.

As Peter Dutton notes in his AJIL article, establishing an ADIZ is not in itself a violation of international law,  Indeed, it is usually justified by a need to create an early warning system to protect national airspace.  China’s ADIZ seems pretty large (map can be found here), and the U.S has rightly complained that aircraft just transiting the ADIZ should not be subject to China’s requirements if those airlines are not planning to enter (or even come near to) Chinese national airspace.

But China’s ADIZ is carefully drawn to include two sets of islands/rocks that it claims as sovereign territory: the Senkakus/Diaoyu (also claimed by Japan) and the Ieodo/Suyan Rock (also claimed by South Korea).  To the extent those territories are “national airspace”, China can argue that it should be allowed to draw an ADIZ around them to ensure any airplanes coming near them will not enter that airspace, etc.  As Zachary Keck suggests, China is using the ADIZ to subtly build its legal claim to sovereignty over the Senkakus/Diaoyu Islands. Hence, China is probably invoking the UN Charter’s self-defense provision to justify its ADIZ and its need for all foreign aircraft to report flight info/etc. when entering the ADIZ.  (Some commenters to my first post have suggested China can’t invoke self-defense over a disputed territory, or uninhabited islands that don’t otherwise threaten its national airspace.  I am not sure the customary practice is clear on this, since Japan’s ADIZ, which also covers the Senkakus/Diaoyu, couldn’t be justified either under this view. Also, for the purposes of this post, I am assuming China has a plausible claim to the islands).

Seen from this perspective (at least vis-a-vis the U.S.), China’s ADIZ is not inconsistent with any existing international agreement or customary legal rule.  This is largely because of the strange and confusing U.S. position on the sovereignty over the Senkakus/Diaoyu Islands.  The U.S. does not take any official position on which country (China, Taiwan, or Japan) has sovereignty over these islands.  But it recognizes that Japan has administration over them (indeed, it was the U.S. that turned them over to Japan back in 1972) and the U.S. has repeatedly declared that such islands fall within the scope of the U.S.-Japan Defense Treaty.But since the U.S. does not recognize Japanese sovereignty over the Senkaku/Diaoyu Islands, why should it complain when China draws an ADIZ intended to protect airspace over those islands?

This wrinkle in the U.S. position also explains Japan’s harsher reaction to the Chinese ADIZ. To Japan, China is literally demanding Japanese airlines report to its military before crossing airspace into or near Japan’s own national airspace.  It would be like China demanding information from US airlines flying between San Francisco and Hawaii (Congress would explode with indignation).  But from the U.S. perspective, China is just demanding information about airlines flying near disputed airspace that may or may not be part of China anyway.  This is a threat to freedom of international air navigation, but it is not anything like the same kind of affront to sovereignty that it is to the Japanese.

The U.S. position would be more legally coherent if it would simply recognize Japan’s sovereignty over the Senkakus/Diaoyu.  After all, if the U.S. Navy is willing to fight and die for these islands, the U.S. should at least decide whose owns these islands. (If China creates an ADIZ in the South China Sea, the U.S. will also have the same dilemma. See Michael Kelly’s recent essay on the strategic implications of such an ADIZ).  China is subtly probing the U.S. position here, and it has opened up a slight wedge between the U.S. and Japan.  But this wedge is a result of contradictions in the U.S. legal position, not China’s clever diplomacy.

Russia Ignores ITLOS, Formally Violates its UNCLOS Obligations, and No One Cares

by Julian Ku

I’ve been so distracted with my own projects and with China’s ADIZ that I forgot to note that Russia has been in violation of its obligations under UNCLOS since at least December 2.  But that’s OK, it seems that everyone else has forgotten this fact as well.

December 2 was the date set by the International Tribunal for the Law of the Sea for compliance with its order that Russia “immediately release the vessel Arctic Sunrise  and all persons who have been detained, upon the posting of a bond or other financial security by the Netherlands….”  The Netherlands has posted that bond, and as far as I can tell, the Arctic Sunrise has not been released, and none of the detainees have been allowed to leave the “territory and maritime areas under the jurisdiction of the Russian Federation.”  (All have been granted bail, though.)

Russia has no obligation to participate in the ITLOS proceeding, but it has a clear obligation under Article 290(5) to “comply promptly with any provisional measures prescribed…” by the ITLOS.  So Russia is now in plain violation with a lawful judgment of the ITLOS.

What is amazing about this violation in plain sight is that the media appears to have forgotten about this lingering ITLOS order. Russia ignores the ITLOS, and….nothing.  Even the reliable Greenpeace Blog is fairly quiet since their folks are out on bail.  So it turns out no one really cares all that much that the ITLOS has been essentially rendered a nullity in this case as a result of the unilateral action of one of UNCLOS’s member states. I suppose that the Dutch are working out some sort of diplomatic settlement. But this doesn’t change the formal legal violation.

Why do I bring this up? Because if Russia takes no reputational hit from its defiance of ITLOS here, then it seems less likely that other states will worry about the reputational hit from defying ITLOS or other international courts.  Hence, Paul Reichler (the Philippines U.S. attorney in its arbitration) is almost certainly wrong when he said recently:

….[T]here is a heavy price to pay for a state that defies an international court order, or a judgment of an arbitral tribunal that is seen, that is recognized, in the international community as legitimate, as fair, as correct, as appropriate,” Reichler said in a forum hosted by the US-based Center for Strategic and International Studies (CSIS) on Tuesday evening, Philippine time.

“There’s a price to be paid for branding yourself as an international outlaw, as a state that doesn’t respect, that doesn’t comply with international law,” said the topnotch lawyer, who has defended sovereign states for over 25 years.

Hmm…Iran in 1980 (Hostages), the U.S. in 1984 (Nicaragua) and 2008 (Mexico), Colombia in 2013 (Nicaragua)…uh, sorry Paul, I’m not seeing any heavy prices being paid.   So far, Russia is offering a real-life empirical counter-example to Reichler’s claim. Indeed, I don’t see that Russia is paying much of a price at all, so far.  Maybe this is because Russia’s international reputation is not exactly at an all time high, right now. Stlll, China is watching.  If Russia can ignore ITLOS in a case where they actually have detained 30 foreign nationals (mostly from the U.S., Australia, and Europe), then do we really think China will suffer much damage from ignoring an arcane ruling about a bunch of rock/islands where no actual human beings are actually affected?

The OTP’s Remarkable Slow-Walking of the Afghanistan Examination

by Kevin Jon Heller

The Office of the Prosecutor (OTP) at the ICC just released its 2013 Report on Preliminary Examination Activities. There is much to chew over in the report, but what is most striking is the OTP’s slow-walking of its preliminary examination into crimes committed in Afghanistan.

The OTP divides preliminary examinations into four phases: (1) initial assessment, which filters out requests for investigation over which the ICC cannot have jurisdiction; (2) jurisdiction, which asks “whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court”; (3) admissibility, which focuses on gravity and complementarity; and (4) interests of justice, whether the OTP should decline to proceed despite jurisdiction and admissibility.

The OTP opened its investigation into the situation in Afghanistan in January 2007. Yet only now – nearly seven years later – has the OTP concluded that there is a reasonable basis to believe that crimes were committed there. And what are those crimes? Here is a snippet from the report:

23. Killings: According to the United Nations Assistance Mission in Afghanistan (“UNAMA”), over 14,300 civilians have been killed in the conflict in Afghanistan in the period between January 2007 and June 2013. Members of anti-government armed groups were responsible for at least 9,778 civilian deaths, while the pro-government forces were responsible for at least 3,210 civilian deaths. A number of reported killings remain unattributed.

24. According to UNAMA, more civilians were killed by members of anti- government armed groups in the first half of 2013 than in 2012. Members of the Taliban and affiliated armed groups are allegedly responsible for deliberately killing specific categories of civilians perceived to support the Afghan government and/or foreign entities present in Afghanistan. These categories of civilians, identified as such in the Taliban Code of Conduct (Layha) and in public statements issued by the Taliban leadership, include former police and military personnel, private security contractors, construction workers, interpreters, truck drivers, UN personnel, NGO employees, journalists, doctors, health workers, teachers, students, tribal and religious elders, as well as high profile individuals such as members of parliament, governors and mullahs, district governors, provincial council members, government employees at all levels, and individuals who joined the Afghanistan Peace and Reintegration Program and their relatives. The UNAMA 2013 mid-year report, in particular, indicated a pattern of targeted killings of mullahs who were mainly attacked while performing funeral ceremonies for members of Afghan government forces.

You can see why it took the OTP nearly seven years to determine (para. 35) “that there is a reasonable basis to believe that crimes within the Court’s jurisdiction have been committed within the situation of Afghanistan.” The crimes are so minor and so isolated that they could only be uncovered by years of diligent investigation.

The OTP obviously could have moved to Phase 3 — admissibility — years ago. So why didn’t it — especially given the pressing need for a non-African investigation? See below…

Will Russia Comply with the ITLOS Ruling? Probably Not.

by Julian Ku

It looks like Russia is not going to comply with last week’s ITLOS ruling, ordering it to release the Arctic Sunrise and its passengers upon payment of a bond.

Russia is not going to comply with the International Tribunal for the Law of the Sea’s Friday ruling regarding the Arctic Sunrise vessel operated by Greenpeace, Russian presidential chief of staff Sergei Ivanov said.

“It will not, because we said at the very start that we are not going to take part in these proceedings,” Ivanov said on Saturday when asked by journalists how Russia will react to the Tribunal’s ruling.

Russia ratified the convention based on which this Tribunal acts with a number of reservations, which prevented it from entering these particular proceedings, Ivanov said.

“The issue will be handled not politically but legally, based on Russian law rather than someone’s political wishes,” he added.

Russia will probably stick to its legal position, which is contained in its note verbale to the Netherlands, arguing that this matter lies beyond the jurisdiction of UNCLOS dispute settlement since it is an exercise of Russia’s criminal jurisdiction in its law enforcement capacity.

Of course, as Prof. Craig Allen noted here, the ITLOS rejected Russia’s view of jurisdiction holding that an Annex VII Arbitral Tribunal would have at least prima facie jurisdiction.  This seems to be enough to justify ITLOS’s provisional measures jurisdiction.  Since such a tribunal has the power to determine its own jurisdiction (pursuant to UNCLOS Art. 288(4)), Russia’s jurisdictional position is hard to support.  It’s also annoying because just a few months ago, the world was treated to a lecture from President Putin on how “the law is still the law, and we must follow it whether we like it or not” in the midst of the Syria crisis.

Russia will not technically violate its UNCLOS obligations until Monday, December 2, the deadline for compliance with the ITLOS order.  And it is already releasing most of the Greenpeace folks on bail (leaving the country is another matter).  So it will probably work out some sort of diplomatic settlement with the Netherlands here, but it looks like complying with the ITLOS order is not in the cards.  As this Russian law professor explains,

“If Russia refuses to fulfill the requirements of the International Tribunal for the Law of the Sea regarding the Greenpeace case, it will not entail any sanctions. International law does not provide punishment for insubordination,” Labin said.

I don’t want to overstate the significance of this incident, but if Russia fails to comply (unlike Ghana earlier this year) and does not participate in the Annex VII arbitration (per the China example) either, this is another serious problem for the future effectiveness of UNCLOS dispute settlement.

ITLOS Orders Russia to Release ARCTIC SUNRISE and its Greenpeace Protestors

by Craig H. Allen

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

The International Tribunal for the Law of the Sea (ITLOS) dealt a blow to the Russian Federation on November 22nd, when it ordered Moscow to release the Arctic Sunrise and the remainder of the Greenpeace protestors who were on the vessel when Russia seized it on September 19, 2013.  Shortly after the tribunal’s decision was announced, however, the Voice of Russia reported that the Russian government does not intend to comply with the order.

The case is the Arctic Sunrise (Kingdom of the Netherlands v. Russian Federation), ITLOS Case No. 22, Provisional Measures, Order of Nov. 22, 2013. The tribunal’s order, which is conditioned upon the Dutch government posting a €3.6 million bond or bank guarantee, was signed by Shunji Yanai, president of ITLOS, on behalf of 19 ITLOS judges. Two judges dissented: Vladimir Golitsyn of Russia and Markiyan Kulyk of Ukraine. In addition, separate opinions were issued by Judges Jesus and Paik individually, along with an important joint separate opinion by Judges Wolfrum and Kelly. …(Continue Reading)

Meanwhile, China Draws a Provocative, Dangerous, But Perfectly Legal Air Defense Identification Zone in the East China Sea

by Julian Ku

£¨Í¼±í£©[¶«º£·À¿Õʶ±ðÇø]¶«º£·À¿Õʶ±ðÇø»®ÉèʾÒâͼI don’t have any insights to offer on the big news this weekend, that legally-non binding-UNSC-resolution-violating agreement in Geneva.  But I did want to note one other big sort-of-law news item from the other side of the world: China’s announcement that it is drawing an Air Defense Identification Zone (ADIZ) in the East China Sea, including over the disputed Diaoyu/Senkaku Islands.

China’s announcement has riled up both Japan (which has declared it “totally unacceptable”) and the United States (which has expressed “deep concerns.”)

Why all the fuss? China’s new ADIZ appears to overlap with Japan’s own ADIZ in some crucial places (like the Senkakus/Diaoyu) as well as South Korea’s and Taiwan’s.  China has declared that aircraft entering its ADIZ must report flight information to Chinese authorities (actually, its military) and (here’s the scary part), “China’s armed forces will adopt defensive emergency measures to respond to aircraft that do not cooperate in the identification or refuse to follow the instructions.”  The U.S. is already hinting that it will test this resolve by flying aircraft through the ADIZ.  (Wonder which lucky US pilot draws that mission!)

Although provocative and dangerous, it seem clear to me that China’s ADIZ does not violate international law.  Indeed, China’s Foreign Ministry was perfectly correct today in its claim that its ADIZ is consistent with “the U.N. Charter and related state practice.”  Countries (led by the U.S.) have long drawn ADIZs beyond their national sovereign airspace as a measure to protect their national airspace.  This practice, although not exactly blessed by any treaty, does not appear to violate either the Chicago Convention or UNCLOS.  (See Peter Dutton’s very solid review of ADIZs here in the American Journal of International Law for a good discussion on this point).

If China has sovereignty over the Diaoyu Islands, then it is perfectly legal for it to declare an ADIZ beyond those islands to protect the airspace above those islands.  It is a little less clear why China needs the rest of the ADIZ, but it is presumably aimed at protecting its national airspace.  The U.S. State Department has already offered China an interpretive out of creating unnecessary conflict:

The United States does not apply its ADIZ procedures to foreign aircraft not intending to enter U.S. national airspace. We urge China not to implement its threat to take action against aircraft that do not identify themselves or obey orders from Beijing.

Now the accuracy of this description of US practice could be questioned, but it is probably right. In recent years, the U.S. has allowed Russian bombers to fly through its ADIZ over Alaska.  If China follows this practice, this could help a great deal to diffuse tensions. One can only hope. Early signs are not promising,as China has essentially told the U.S. to shut up and butt out of this issue.

China’s ICJ Judge Xue Hanqin Publicly Defends China’s Non-Participation in UNCLOS Arbitration [Updated]

by Julian Ku

xue

[This Post has been updated]. One of the main benefits of attending a conference (rather than just reading descriptions of its proceedings), is the chance to have face-to-face exchanges with individuals you normally never get a chance to meet.  One of the unusual aspects of the Asian Society of International Law is that it draws lawyers from many different Asian countries, even Asian countries locked into disputes with each other.  Like the Philippines…and China.

Which is why I was so pleased to witness a frank exchange last week at AsianSIL’s biennial conference in New Delhi, India between two unofficial but influential representatives of each country’s legal positions in the upcoming Philippines-China UNCLOS arbitration. In one corner, Prof. Harry Roque from the University of the Philippines presented a relatively even description of the Philippines’ claim against China during a panel on the Law of the Sea in Asia (click here for his blogging on this same event).  In the other corner, was Judge Xue Hanqin, China’s member of the International Court of Justice.  Although she was not listed as a panel participant, she stood up after Prof. Roque’s presentation to offer a 15-minute extemporaneous defense of China’s position.

Judge Xue is no longer officially affiliated with the Chinese government, but she has served in high diplomatic positions before her current post.  One of her prior positions, indeed, was as China’s Ambassador to the Association of Southeast Asian Nations (ASEAN) where she was involved in negotiations with Vietnam over maritime rights.  Moreover, she has served a general legal adviser to the Chinese Ministry of Foreign Affairs, including on its submission to the ICJ in the Kosovo advisory proceeding.  Her views are likely to be close or the same as the views of the Chinese government on these issues.  Since the Chinese government has offered almost no official explanation of its legal position, her statement may be the best we will get from China in the near future.[*UPDATE: On the other hand, Judge Xue wants to make clear she is not representing China in any official or unofficial capacity and that she does not endorse the summary of her views below. See below for her full disclaimer].

The following is based on my notes of her presentation. They are necessarily incomplete, but hopefully a fair summary of her views.