I’m delighted to call readers attention to a symposium next week on my friend Itamar Mann’s new book, Humanity at Sea: Maritime Migration and the Foundations of International Law, which was just published by Cambridge University Press. Here is the 411:

I’m delighted to announce the publication of two new essays. The first is “The Use and Abuse of Analogy in IHL,” which is a chapter in Jens’s edited book for CUP, “Theoretical Boundaries of Armed Conflict and Human Rights.”

I’m very proud of the essay — and all of the contributions to the book are excellent.

The second publication is my article “Radical Complementarity,” which has just appeared in the Journal of International Criminal Justice. Here is the abstract:

In March 2015, a domestic court in Côte d’Ivoire sentenced Simone Gbagbo to 20 years in prison for disturbing the peace, organizing armed gangs and undermining state security — a sentence considerably longer than any sentence imposed by the International Criminal Court (ICC) and twice as long as the Ivorian prosecutors requested. The Court has nevertheless held that Gbagbo’s case remains admissible, because her domestic prosecution was not based on the same conduct as the conduct underlying the crimes against humanity charges issued by the Office of the Prosecutor. This article argues that the Court’s decision in Simone Gbagbois inconsistent with the principle of complementarity. Section 1 criticizes the Court’s jurisprudence concerning Article 17’s ‘same person’ requirement, arguing that the test the judges use to determine whether a state is investigating a particular suspect is both inconsistent with the ICC Statute and far too restrictive in practice. Section 2 explains why the ‘same conduct’ requirement is antithetical to the goals underlying complementarity and should be rejected as a matter of law. The article thus defends what we might call ‘radical complementarity’: the idea that as long as a state is making a genuine effort to bring a suspect to justice, the ICC should find his or her case inadmissible regardless of the conduct the state investigates or the prosecutorial strategy the state pursues.

The published version differs substantially from the one I posted a while back on SSRN. You can find the article here.

[This is the third episode in the Multi-blog series on the Updated Geneva Conventions Commentaries, jointly hosted by the Humanitarian Law & Policy Blog, Intercross and Opinio Juris. The first, by Jean-Marie Henckaerts, can be found here, and the second, by Sean Murphy, here.]

It is a great pleasure to contribute to this multi-blog series on the ICRC’s newly-released Commentary on the First Geneva Convention (GC I). Sean Murphy is right that GC I might seem “of lesser significance” than the Third and Fourth Geneva Conventions (GC III and GC IV) – and there is no question that IHL scholars everywhere will eagerly await the ICRC’s Commentaries on those Conventions. But that does not detract from the importance of this first Commentary, which represents a remarkable achievement in its own right. As the Introduction notes, the authors of this new Commentary had to analyze nearly seven decades of state practice, a massive and unenviable task. Moreover, they had to address some of the most contentious issues in IHL, such as the scope of application of Common Article 3 (CA 3). Indeed, I have little doubt that the Commentary’s overall Common Article 3 discussion – which runs to 907 paragraphs, approximately 800 more than its 1952 predecessor! – will attract considerable scholarly attention (and cause considerable academic controversy) in the coming years.

For my part, I generally agree with Murphy’s and Jean-Marie Henckaerts’ comments about the ICRC’s methodological approach in the Commentary. But I think Henckaerts actually underplays one of the most encouraging aspects of the ICRC’s methodology: its willingness to make liberal recourse to travaux preparatoires when interpreting provisions of GC I. Here is paragraph 49 in the Introduction:

Indeed, it seems logical for a thorough examination of all the issues to look at the preparatory work even if the general rule of interpretation yields a satisfactory result. It also helps the commentator to understand ‘the terms of the treaty in their context’ which is a requirement under the general rule (see Article 31(1) and (2) of the Vienna Convention on the Law of Treaties). Recourse to the preparatory work is particularly important when no recent practice on a topic can be found, such as for Articles 33 and 34 of the First Convention dealing with the fate of buildings and material of medical units of the armed forces and aid societies after they fall into enemy hands.

This is a refreshing deviation from VCLT orthodoxy about travaux preparatoires being unnecessary when the “ordinary meaning” of treaty terms is ostensibly clear. As Julian Mortenson has shown, that orthodox view of the VCLT is impossible to reconcile with the treaty’s own history, because “the drafters repeatedly reiterated that any serious effort to understand a treaty should rely on a careful and textually grounded resort to travaux, without embarrassment or apology.” Indeed, scholars all too often use a treaty’s supposed “ordinary meanings” as a vehicle to substitute their own political preferences for the will of the states that drafted and concluded it.

I also agree with Henckaerts and Murphy concerning the central role that the ICRC plays in interpreting the Geneva Conventions – the “guardian and promoter of IHL,” in Henckaerts’ words. But that role poses a danger that needs to be openly acknowledged: namely, that those who use the Commentary – soldiers and scholars alike – will be tempted to uncritically accept the ICRC’s interpretation of GC I. There is no question that the authors of the Commentary are among the world’s most expert IHL practitioners and scholars, but they are neither infallible nor objective. On the contrary, both the experts and the ICRC as an institution have political and legal commitments that cannot help but influence how they interpret GC I. That does not mean that their interpretations should be discarded. It does not even mean their interpretations should always be viewed with a skeptical eye. But it does mean that IHL scholars should be willing to challenge the Commentary when they believe that the ICRC is wrong.

To be clear, I am in no way suggesting bias or bad faith on the part of the Commentary’s authors. I am simply pointing out that interpretation is an inherently indeterminate, subjective, and political activity, which means that it matters a great deal who is doing the interpreting. And there is no escaping the fact that the members of the Editorial Committee, the ICRC Project Team, and the Reading Committee come exclusively from states in the Global North – most from states in Western Europe. Again, that does not mean that the Commentary is wrong on any particular point. Moreover, to the ICRC’s credit, the Commentary’s peer-review group, who “reviewed the drafts and provided comments in their personal capacity,” included individuals from dozens of states in the Global South. But it is nevertheless regrettable that the primary authors and reviewers of the Commentary are so geographically homogenous – especially given that the states they represent rarely if ever experience the kind of conflict that is subject to Common Article 3.

Finally, I want to flag a very odd statement in the Commentary, paragraph 10 in the Introduction:

In addition, what sets the updated Commentaries mandated by the ICRC apart from other academic commentaries is that the contributors were able to draw on research in the ICRC archives, while respecting their confidential nature, to assess the application and interpretation of the Conventions and Protocols since their adoption.

I have no doubt this is true – but I find it somewhat troubling to know that the ICRC’s interpretation of GC I is based on evidence that cannot be subjected to scholarly criticism. I hope the ICRC will say more about its reliance on non-public information in future Commentaries, which will deal with even more controversial aspects of IHL.

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!

Event

• For its 10-year anniversary the Vienna Journal on International Constitutional Law (ICL Journal) will host a conference dedicated to its very scope: The one day event to be held on 23 September 2016 at Vienna University of Economics and Business (WU) will focus on the concept of International Constitutional Law. Keynote lectures will be presented by Frederick Schauer and Alexander Somek. To participate please register until Sept 16th 2016 with the conference office at maria [dot] fegerl [at] wu [dot] ac [dot] at Attendance is free of charge. For further information see www.icl-journal.com.

Calls for Papers

• We are pleased to announce a forthcoming Transnational Dispute Management (TDM, ISSN 1875-4120) special issue on “Non-Legal Adjudicators in National and International Disputes”. This special issue will analyse the current scenario, as well as new trends, developments, and challenges that non-legal adjudicators face when resolving national and international disputes. It will consider litigation; national arbitration and diverse forms of alternative dispute resolution (ADR); international commercial arbitration; investment arbitration; inter-State arbitration and the dispute settlement system of the World Trade Organization (WTO).This special issue will be edited by Katia Fach Gómez (University of Zaragoza-Spain) and Weiwei Zhang (Graduate Institute of International and Development Studies – Switzerland). More information can be found here. Proposals for papers should be submitted to the editors – contact details here – on or before 31 October 2016. Accepted papers should be submitted to the editors on or before 10 January 2017. Publication is expected in the second quarter of 2017.
• Call for Papers: Jus Post Bellum and the Justice of Peace: The Jus Post Bellum Project is seeking submissions of academic research papers for presentation at the final project conference on  ‘Jus Post Bellumand the Justice of Peace’ on 29-30 September 2016 in The Hague. Submissions should include an abstract of no more than 300 words and be accompanied by a CV. Submissions must be written in English and sent to j [dot] m [dot] iverson [at] law [dot] leidenuniv [dot] nl no later than 5 August 2016. Draft papers should be submitted by 15 September 2016.

Announcements

• TDM 2 (2016) Latin America Special (Vol. 1): Prepared by guest editors Dr. Ignacio Torterola and Quinn Smith, this special addresses the various challenges and changes at work in dispute resolution in Latin America. A second volume that continues many of the themes in this special from different angles and perspectives is also nearing completion. (Articles in English and Spanish).

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

The American Branch of the International Law Association has sent us the following call for submissions for an “Emerging Voices Panel” that they have added to this October’s International Law Weekend. (Not to be confused with Opinio Juris‘ Fourth Annual Emerging Voices Symposium, which will be starting later this month).

ILW is an excellent conference and I am sure this will be a great addition:

International Law Weekend 2016: International Law 5.0

Call for Proposals for Emerging Voices Panel

Introduction

International Law Weekend 2016 (ILW 2016) calls on scholars and practitioners to address the accelerating nature of change in international law. From technological advances to environmental transformations, international lawyers are forced to confront emerging forces and new scenarios. Even settled principles of law are no longer settled. These tectonic shifts have been felt throughout the geography of international law. Legal professionals at every level – local, national, regional, and international – must change their practice to meet a changing world. Innovation will become necessary for survival.

Emerging Voices Submissions

ABILA invites the submission of abstracts from emerging scholars and practitioners in the field of international law.  We will select several abstracts for presentation at ILW 2016 as part of a panel of new professionals. The abstracts may be based upon ongoing work. While all submissions are welcome, preference will be given to papers not already published. Eligibility is restricted to applicants working in the field of international law for five years or less. Applicants should be ABILA members at the time of the conference.  (To join ABILA, please visit: http://www.ila-americanbranch.org/Membership.aspx.)

 Submission Guidelines

Applicants must submit: (1) a 500-700 word abstract of their paper; (2) a cover letter describing their professional development; and (3) a curriculum vitae. The submission deadline is July 31, 2016. Submissions should be sent to conferences [at] ilsa [dot] org with the subject line “Emerging Voices – ILW 2016.” Questions may also be submitted to: conferences [at] ilsa [dot] org.

Submissions will be competitively selected in a peer review process.  Applicants will be notified by August 31, 2016.

ILW 2016 is scheduled for October 27-29, 2016 in New York City and will be held at Fordham Law School. Accepted applicants will be invited to present their papers at the Emerging Voices panel, which will be chaired by a senior scholar or practitioner. Accepted applicants will be required to pay for their own travel and lodging. However, their registration fees for ILW 2016 will be waived.

[Dr. Frederick Cowell is a Lecturer in Law at Birkbeck College, University of London School of Law.]

On the 6^th of July the UK’s Iraq Enquiry report was finally published having taken almost seven years to complete. The process,  chaired by a leading former British civil servant, Sir John Chilcot, aimed to look at the causes and consequences of the 2003 Iraq War from the perspective of the British government. Since it was a public and not a judicial enquiry, it did not pronounce on the legality of the war but, as Sir John said in his press conference on the report, on “the circumstances under which the UK decided there was a legal basis for war were far from satisfactory.” The report raised a number of different legal issues but perhaps the most intriguing feature of the report is the implication for the doctrine of humanitarian intervention.

The 2003 Iraq war was not politically ‘sold’ on the basis of humanitarian intervention. UN Security Council Resolution 1441 (.pdf) spelt out the terms for further weapons inspections in Iraq following the weapons inspections that had been on and off since the 1991 Gulf War. The legal advice to invade Iraq that was presented to the British Cabinet on the 11^th of March 2003 was based on the argument that earlier legal authority had been ‘revived’ (Vol. 6 paragraph 690 onwards [.pdf]).  This argument was somewhat overstretched and was criticised in an earlier section of the report which doubted the idea that states had a “residual right” to unilaterally enforce UN Security Council resolutions. As Dinos Kritsiotis (.pdf) argued, applying Nicaragua v US (.pdf) to the case for operation Iraqi freedom, it is important to distinguish the legality of the overt political justification for war and the legal basis for the use of force. In the 2003 Iraq War the overt legal basis for use of force under the UN Charter was highly flimsy and dependent on a stretched reading of the right to use military force under Article 42 of the UN Charter.

Though the Chilcot report did not expressly rule on the legality of the use of force the legality of regime change is a somewhat different question. As Gerry Simpson noted the notion of regime change is difficult to justify under the principles of self-defence, not least because the UK and US opinions on the validity of this argument radically diverged. The question of regime change on ideological grounds is prohibited, as the ICJ made clear in the Nicaragua judgment, but humanitarian intervention to remedy human rights abuses had, prior to Iraq, received some degree of acceptance not least when the Kosovo Commission concluded NATO’s 1999 air war was “illegal but legitimate.”  The concept of a Responsibility to Protect (R2P) was still two years away in 2003 and even when the doctrine was developed in the late 2000s it was careful not give outright support for intervention absent Security Council authorisation. The 2010 Secretary General’s report on the Responsibility to Protect was critical of humanitarian intervention saying that it “posed a false choice between two extremes: either standing by in the face of mounting civilian deaths or deploying coercive military force to protect the vulnerable” (UN SG Report 2010 Para 7). Two principles from the R2P doctrine which have often guided arguments about humanitarian intervention – is there a human rights abuse and would the intervention remedy that abuse – provide a prism through which to view the report’s findings and their relation to the doctrine of humanitarian intervention.

The human rights abuses committed by Saddam Hussein’s regime were, as the report details, a central part of the case being made by the British Government during late 2002 (see Volume 2, Section 3.4 paragraph 331). Crucially, however, this was largely secondary to the overall aim of regime change. Where the British were concerned about Saddam Hussein’s human rights abuses it was in connection to gathering evidence to prove the instability of the regime more generally (see Volume 2, Section 3.2 Paragraph 575). Kenneth Roth was fairly clear in his assessment in 2006 that human rights abuses, such as the 1988 massacre of Kurds, would not add up to a sufficiently immediate threat to justify the invasion of Iraq in 2003 in order to prevent such abuses occurring.  Indeed whilst it was clear in pre-war Cabinet meetings that Saddam was, in words of the former UK Foreign Secretary Robin Cook, “a tyrant” and a “shit,” this was not the motivation for invasion, nowhere in the Chilcot report is there a mention of a specific human rights abuse that the invasion is designed to stop. Michael Walzer in 2012 drew a distinction between intervention for purposes of relief (to stop a genocide) and purposes of repair (to change a regime) indicating that the former may still be defensible post-Iraq.

With regard to the second principle the Chilcot report was highly critical of all levels of post invasion planning noting systemic failures in several areas including the preparation of basic resources to provide security post invasion and any real plan for civil contingency in the aftermath of the invasion.  This was causally linked to the violence that broke out after the invasion leading to many thousands of civilian deaths. Kier Starmer, a former public prosecutor and now Labour Party Member Parliament, in a thoughtful piece reflecting on the Chilcot report’s findings suggested that a post-conflict plan ought to be a legal requirement for any future intervention. This helps resolve one tension at the heart of humanitarian intervention what JL Holzgrefe  described as ‘act utilitarianism’; the otherwise illegal act can be justified for its maximisation of welfare. But there is a need to actually deliver on this promise of welfare, otherwise the argument fails. This clearly was not the case in the 2003 Iraq War, as the report outlined.

Whilst not expressly commenting on the concept of humanitarian intervention the Chilcot reports findings leave little doubt that the 2003 Iraq War cannot be justified under this doctrine. The attempts by supporters of the war to frame the conflict in retrospect as a form of quasi-humanitarian intervention, examining Saddam’s appalling human rights record or the prospect of further abuses, are missing the point; the type of war launched in 2003 could not be justified under any reasonable understanding of the doctrine of humanitarian intervention, and the findings of fact in the Chilcot report support this interpretation.  The report’s finding will shape the understanding of the most contested conflict of the last half-century and the one that colours all subsequent debates on the doctrine of humanitarian intervention.

[Liu Haiyang is a research fellow at the Collaborative Innovation Center of South China Sea Studies, Nanjing University, China. This post was submitted to Opinio Juris under the auspices of the Chinese Initiative on International Law, an NGO with a mandate of promoting a better understanding of international law, particularly international criminal law and justice.]

The ad hoc Arbitral Tribunal established under the request of Philippines issued its final award on 12 July 2016. The lawfare over the legal effect of the verdicts of the Tribunal between China, on one side, and the United States with its allies and partners behind the case, on the other, will change focus from the legality of jurisdiction concerning the preliminary award to the legal consequences of the final award.

Although the U.S. is not a party to the present case, it seemed well prepared for the decision. Besides a significant increase of military presence and operations, with more warships and aircraft in the South China Sea, the U.S. and its allies have also loudly raised their voices to urge China to respect the final decisions of the said arbitral tribunal. The general tone of the criticisms suggests that China’s non-compliance with the final ruling would amount to non-compliance with international law and as well as a show of contempt for the international rule of law. For its part, China has also stepped up its media campaign to defend its position of non-recognition of any ruling by the tribunal through more diplomatic efforts and academic symposiums.

While both sides may hype up or downplay the legal consequences of the ruling, the heart of the question is the legal effect of the arbitral ruling in international law. To be more specific, is the award legally binding? How could the decision of an arbitral tribunal be implemented in international law? Is the non-recognition and non-implementation of the decision of an arbitral tribunal equivalent to non-compliance with international law? These are questions that need to be addressed.

In general, once an arbitral award has been made, it is final and binding upon the parties. That is the reason why the mainstream international understanding, misdirected by the U.S., is that the South China Sea arbitral award is binding upon China. However, there is an exception to the rule. In certain circumstances the award itself may be regarded as a nullity. It is fairly generally accepted under international law that the excess of power may be treated as a nullity. That’s exactly the position taken by China: that the arbitral tribunal exercised jurisdiction ultra vires and any of its decisions have no legal effects. In particular, the disputes between China and Philippines are either sovereignty disputes over islands, which are not governed by the UNCLOS, or disputes concerning maritime delimitation, which are excluded by China through a 2006 declaration based on Article 298 of the Convention. However, those exceptional rules are fully understood only by a small group of legal experts, and the general public only knows general rules. This put the U.S. in a good position to hype up the binding force of the award as a general rule, while China has an uphill battle to explain to the international community why the award has no legal effects as an exceptional rule. The U.S. and its allies will surely make full use of this advantage to put consistent international pressure on China to abide by the award.

Even supposing an arbitral award is binding on both parties, how to enforce it is another issue. In general, the success of arbitration depends on the goodwill between the parties in actually enforcing the award. Unlike in a domestic legal system, which has a central government to enforce the law, there is no such world government above states to enforce international law. The only exceptional case lies with the International Court of Justice (ICJ). Under article 94 of the UN Charter, one party may have recourse to the Security Council, which may enforce the decisions. However, the present case was decided by a 1982 UNCLOS Annex VII arbitral tribunal and the decision could in no way be enforced by third parties. Under article 12 of the UNCLOS Annex VII, “Any controversy which may arise between the parties to the dispute as regards the interpretation or manner of implementation of the award may be submitted by either party for decision to the arbitral tribunal which made the award.” Also, “[a]ny such controversy may be submitted to another court or tribunal under article 287 by agreement of all the parties to the dispute.”

Finally, does the arbitration award per se amount to international law, so that the non-recognition and non-implementation of the award is equivalent to non-compliance with international law? It is common sense among international lawyers that, under article 38 of the Statute of the ICJ, the sources of international law are composed of international treaties, international customs, and general principles of law and judicial decisions can only be utilized as a subsidiary means for the determination of rules of law rather than as an actual source of law. However, the U.S. may again make use of the gap between the understanding shared by small group of legal experts and the general public’s misunderstanding of international law so as to label China’s non-recognition of the award as non-compliance with international law.

In fact, neither the U.S. nor the Philippines has much credibility in this regard. The U.S. is the least qualified state to criticize China on this point, as the U.S. is the only country that used veto power in the UN Security Council to prevent the enforcement of the ICJ decision in Nicaragua case. Notwithstanding this clear defiance of international judicial decisions, many U.S. politicians and scholars are echoing the same voice that China would dishonor international rule of law in the sense that China does not recognize the award. Even the Philippines has been inconsistent in its respect for international arbitration, holding in the present case that a arbitral tribunal’s decision in Southern Bluefin Tuna case was wrongly decided. It is questionable whether the Philippines’ dishonoring of an arbitral decision amounts to non-compliance of international law. While it is not meant to make a tu quoque argument here, the position of the U.S. shows a clear sign of a double standard.

For its part, the best approach for China to win this lawfare is to tell its side of the story regarding the general rule versus exceptional rule. There is still a long way to go for China to pierce the legal veil covering American political trickery.

Much to many observers’ surprise, the first country to take aggressive action in response to the UN Convention for the Law of the Sea tribunal’s award this week was Taiwan.  New Taiwanese President Tsai Ing-wen’s government issued a blistering statement stating that the arbitral award was unacceptable and that it has no “legally binding force on the ROC.” It noted that the tribunal ruled that Taiping Island and other Spratly land features were rocks rather than islands.   “This decision severely jeopardizes the legal status of the South China Sea Islands, over which the ROC exercises sovereignty, and their relevant maritime rights.”

More significantly, President Tsai moved up the departure date of an ROC naval ship that was scheduled to conduct a patrol in that region.  In a speech made before the departure of the ship, she announced that the frigate was being dispatched to display Taiwan’s resolve in defending its national interests.  She further warned that the arbitral award had “gravely harmed” Taiwan’s rights in the South China Sea.

Tsai’s remarks were disappointing for those looking for the new president to moderate Taiwan’s expansive South China Sea claims. In fact, her statement was usefully trumpeted by the Chinese government and media as a sign of cross-strait Chinese solidarity.

I have never understood the Taiwanese government’s obsession with maintaining its expansive claims in the South China Sea.  It is a waste of government resources to protect a fishing industry that doesn’t really deserve so much protection.  I am particularly surprised that the current Taiwan president is acting so aggressively to protect Taiping Island’s status as an “island” under UNCLOS entitled to an exclusive economic zone.  As far as I understand it, Taiwan has not actually tried to enforce an EEZ around Taiping Island, nor has it tried to exploit any hydrocarbons or minerals in the EEZ.  So as a practical matter, the award will not require the Taiwanese government to change its policy much at all.  There is no “grave harm” to Taiwan’s national interests here.  In fact, the award should have almost no meaningful practical effect on Taiwan at all.

So why the big fuss? It is possible that Tsai is using the South China Sea issue to build a little goodwill in China.  It is also possible that Tsai is feeling pressure from legislators in Taiwan who have been accusing her of failing to adequately protect Taiwan’s interests in the South China Sea.  One former legislature even accused her of planning to lease Taiping Island to the U.S.

All of this is a missed opportunity.  Tsai could have issued a statement saying that Taiwan “respects” the ruling even though Taiwan is not bound by it. She could have then said that Taiwan will act in conformity with the award.  This would have required Taiwan to do nothing new, give up nothing at all. It would have curried favor for Taiwan in the international community, a place it desperately wants to be part of and needs the support of. Being the only country (?) in the world that sides unequivocally with China on this award is not a good look for Taiwan.  One hopes the Tsai government will re-think its approach.

I have been mildly obsessed with the dispute between the Philippines and China for over three years now. It touches on so many areas of my research interest: international courts, China, and the UN Convention of the Law of the Sea. So I am almost sad that the dispute, at least for legal purposes, finally ended today with the arbitral tribunal’s sweeping award in favor of the Philippines.

Since the beginning of the arbitration process, I have wondered what the impact of China’s boycott would be on the future viability of the UNCLOS system of dispute settlement. For the first two years of the dispute, I was skeptical that China would suffer any meaningful damage from defying the UNCLOS arbitral system. Thus, I wondered if, combined with Russia’s almost cavalier defiance of an ITLOS proceeding involving Greenpeace, the end result in this process would be a toothless UNCLOS dispute settlement process of little value or significance. This was one of the reasons I sharply criticized the Philippines for adopting a fruitless “lawfare” strategy.

Time will tell, but early reviews point to me being wrong. China is much more vulnerable to “shamefare” than I had imagined. The evidence for China’s vulnerability lies, I think, in the extraordinary over-the-top global public relations campaign to denigrate and delegitimize the award before it was even issued. If China thought the award would have little impact, it would not have dragooned its diplomatic service, its state-run media, and even its civil society into a huge, sometimes nasty PR effort against the award.

Still, the game must run its course. The key is how other nations not named the Philippines or the U.S. react to the award. If most key nations, including China’s regional neighbors, follow the line set out by the U.S. and call upon China to comply with the award, then China’s isolation on this issue will be significant.   The G-7 is expected to follow this path, and it is possible that Vietnam, Malaysia, Singapore, and Indonesia will do so as well. If South Korea, Australia, and India can also be brought on board, then China will have suffered a diplomatic as well as a legal defeat. Why? Because any aggressive Chinese action to respond to the award, such as by militarizing its artificial islands or even building new ones, will be framed as a further violation of China’s international obligations. China will have its own mini-Crimea crisis, and it will be hard for it to gain legitimacy for its actions.

On the other hand, no matter how many government press releases denounce China, it is hard to imagine China ever complying with the award. It can’t, even if it wanted to, since it has locked itself into a rigid public position against the award in front of the world and its own people. So the arbitral award will go unenforced and unimplemented for the foreseeable future. No matter how you slice it, an unenforced award is not a sign of a strong and effective legal system. UNCLOS dispute settlement can be ignored, not without cost, but certainly it can be ignored.

On balance, however, the UNCLOS system seems to have been strengthened by today’s ruling. The U.S. and other key countries seem to have rallied in support of it, and the tribunal’s findings seem to carry a fair amount of credibility with most governments. Indeed, the U.S. now seems to endorse the UNCLOS dispute settlement system with more vigor than one might expect for a non-party. It seems that UNCLOS dispute settlement will survive in a post-Philippines v. China world after all.

The much-anticipated long awaited South China Sea Arbitration award on the merits is here!  It is a slam-dunk, complete, utter, massive, total legal victory for the Philippines on all counts (lots of metaphors here, none are quite sufficient). Essentially, the tribunal ruled in favor of almost all of the Philippines’ claims in the arbitration.  Perhaps the most headline friendly result: The Nine Dash Line has been ruled inconsistent with China’s obligations under the UN Convention on the Law of the Sea.

I have been mostly reacting on twitter this morning, and I am working on some related posts here and elsewhere. This case brings to an end the long process initiated by the Philippines back in 2013 (links to my discussion of them are below).  We will be discussing and debating the impact of this award for a while.