Let Me Be Clear: Taiwan Should Be Defended, Even Though the Defense is Illegal

by Julian Ku

So I managed to anger lots of folks (mostly on twitter) with my post Friday (republished in the Diplomat and RealClearWorld yesterday) on the international legal problems created by any Japanese intervention to defend Taiwan from an attack by China.  I don’t mind angering people (especially on twitter), but I do want to make sure they are angry with me for the right reasons. Many readers seem to think I want China to invade Taiwan, which is in fact the complete opposite of my policy goal.   So let me offer some clarifications of my position on policy, and a few rebuttals of legal responses to my arguments.

1) Policy: I am squarely in favor of U.S. military intervention to defend Taiwan against any PRC military attack. I am even in favor of intervention in the case of a declaration of independence by Taiwan as long as Taiwan acts in a responsible way so as not to threaten China’s national security.(My only hesitation on this is the cost to the US, but not on the merits of Taiwan’s case). Given how strong China is these days, I am pretty sure Taiwan could not be a real military threat to China (nor would it want to be).  Whether the US would actually protect Taiwan is the zillion dollar policy question that I don’t have the answer to.  I hope it does, but I don’t know if it will.

2) Law: However, my favored US policy is in deep tension with, or even direct conflict with, traditional understandings of the international law governing the use of force.  For those of us who love and cherish Taiwan, it is no use pretending as if the law supports a US or Japanese military intervention to defend Taiwan. It doesn’t. It would be better for all concerned if we faced this legal problem head-on rather than try to come up with complicated not-very-persuasive workarounds.  Here are the two most obvious workarounds, raised in this very angry and excited post by Taiwan-expert J. Michael Cole:

a) Responsibility to Protect and Humanitarian Intervention
Here is a simple response: R2P are non-binding principles that, even if they were binding, seems to require Security Council consent.  Humanitarian intervention remains deeply contested and doubtful in international law, and would not apply to Taiwan in any case until it was probably too late. Kosovo is a great example of how contested this doctrine is. Syria is another.

b) The ROC is a separate legal entity.
I get that this is a complicated issue, but I don’t think I am “misreading” historical documents when I write that i) the US recognizes the PRC as the government of China and that the US accepts that Taiwan is part of China; 2) Japan recognizes the PRC as the government of China, and Japan accepts that Taiwan is a part of China.  Sure, neither country recognizes that Taiwan is a part of the PRC, but both the US and Japan have made clear that China is a single legal entity that includes Taiwan, and that the PRC is the sole government in charge of this entity. We can futz around the details, but there is a reason why neither the US nor Japan (nor almost anyone else) have diplomatic relations with Taiwan.

Here is one interesting and unexpected policy consequence of Taiwan’s current legal position: it would be safer from a legal perspective for Taiwan to declare independence, since that would protect it from this legal problem I’ve identified. Of course, that legal position would probably be the least safe from a policy perspective, since it is the mostly likely to spark a Chinese attack.

Which brings me to my real point: the increasing irrelevance of Article 51 of the UN Charter to decisions by major powers on whether to use military force. The decision on whether to defend Taiwan should not depend on workarounds for Article 51. It should depend on the combination of moral values and national interests the US and Japan consider worth protecting here in Taiwan. I think Taiwan is worth protecting, but it is important to recognize that the law is not on Taiwan’s side.

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.

Guest Post: Criminal Law Pays – Penal Law’s Contribution to China’s Economic Development

by Margaret K. Lewis

[Margaret K. Lewis is Associate Professor of Law at Seton Hall Law School]

The current trial of former high-ranking official Bo Xilai has shined the international spotlight on China’s criminal justice system. Headlines are simultaneously emphasizing the Chinese leadership’s concern that its rule is “vulnerable to an economic slowdown” after China’s meteoric rise to become the world’s second largest economy in terms of nominal GDP. What is lacking in both the media and academic literature is an in-depth discussion of the role criminal law has played in China’s stunning economic growth to date as well as the role it might play in the future. This inquiry is particularly timely on the heels of a once-a-decade leadership transition and as China’s ability to maintain a robust growth rate is facing rising skepticism.

As explained in more detail in my article here, not only has the PRC leadership historically used criminal law in service of economic ends but also, going forward, criminal law will likely play a multifaceted role in the leadership’s strategy to sustain growth during what promise to be turbulent times. The debate about the role of law in China’s development has thus far largely focused on the Washington Consensus’s support for a market economy’s need for clear and enforceable contract and property rights, often referred to as the “rights hypothesis.”

The law and development literature’s emphasis on empowering private actors by creating a neutral bureaucracy subject to objective judicial review has shifted the debate from the most basic function of law: creating order. And creating order starts with the coercive power of the state exercised through criminal law. Not only is criminal law a direct way for the government to deprive people of money, liberty, and life, it is cheaper and faster than building the civil and administrative law systems on which the rights hypothesis relies. If a these systems are not credible enough to deter activities that are detrimental to economic growth, the government can invoke the heavy hand of criminal law.

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China and Sovereignty Under International Law

by Julian Ku

As regular readers of this blog might have noticed, I have become more and more interested China and its engagement with international law issues.   Last year, I proposed to the ASIL Planning Committee that we put together a panel of leading U.S. China law scholars.  But the ASIL organizers pushed back and put together a much more diverse group than I had suggested, which included a U.S. China scholar like Jacques Delisle from Penn, but also Chinese international law scholars like Bingbing Jia of Tsinghua and then added a nice dose of on-the-ground policy analysis from Stephanie Kleine-Ahlbrandt of the International Crisis Group.  It ended up being a terrific mix of style, topics, and expertise.  We didn’t rate a “livestream”, but I wanted to share a few thoughts for our readers on what I think is an important topic. I am not going to attempt to summarize their comments, but simply offer some of my reactions to their key points.

The idea of the panel (at least to me) was to consider whether the “rise of China” in global affairs has changed much about how China interacts with international law. In my crude formulation, the question is now less about what “international law does to China” but more what “China will do to international law.”

Both of the lawyer-panelists (Jia and Delisle) focused on “sovereignty” as the most important principle guiding China’s understanding and engagement with international law.

Revive Letters of Marque and Reprisal to Launch Cyber-Attacks Against China?

by Julian Ku

Dan Blumenthal of AEI has a thoughtful piece in Foreign Policy on different tactics the U.S. could take to “win a cyberwar” with China. I think it is more about how the U.S. should “fight” the cyberwar with China and other governments that are going to use cyber-attacks against US companies and government entities.  Still, what caught my eye are two interesting legal proposals.

1) The US could amend the Foreign Sovereign Immunities Act to permit lawsuits against governments and government entities (like China’s) for cyberattacks and cybertheft.  I suppose the idea would be that a US company could sue the infamous People’s Liberation Army unit that is allegedly sponsoring many of the cyber attacks against the U.S.  I think this is a not very good  strategy since such litigation for state sponsors of terrorism have not gone very well.  And it would seem to require the US to open the doors to litigation against a foreign sovereign, which will certainly invite retaliation against the US government and US companies doing business with China. So I assume no such lawsuits would ever be brought, or almost never would be brought.  Still, worth thinking about.

2) Here is the hot idea:  Issuing letters of marque and reprisal against cyberattackers.  This idea has been developed by GMU lawprof Jeremy Rabkin and Ariel Rabkin here. I think as a policy matter, the idea of bringing private non-governmental resources into play is really important, since they have much of the technical expertise and suffer the most damage from cyberattacks.  On the other hand, officially sanctioning private warfare via “cyber-privateers” seems more trouble than its worth.  You are responsible for the damage they wreak, but you don’t actually control them very well since they are not in your chain of command.  And, oh yes, other countries could do this even better than the U.S. could.  Except they simply deny their relationship with the “private”attackers.

And I also think that international law would have something to say about this.  If a state of armed conflict existed, than it is easier to imagine unleashing a private band of cyberwarriors.  But absent that, I don’t think the cyber-privateers makes much legal or policy sense.  How could the US legitimately sanction private attacks against a foreign government absent a state of armed conflict without having to treat all foreign private attacks against it as “armed attacks” as well?

Still, I like the idea of expanding the universe of U.S. expertise and ability in the cyberwars, taking an offensive rather than a defensive approach, and thinking of new ways to do so. I am just not sure reviving private warfare will necessarily do that.

International Law and China’s Domestic Reform – A Good Mix or Self-Defeating?

by Julian Ku

Some leading Chinese scholars and prominent Chinese activists have been circulating a letter on Chinese social media calling for the National People’s Congress (China’s legislature) to ratify the International Covenant on Civil and Political Rights (ICCPR).   Here is an excerpt from the letter, which is carefully worded not to challenge the authority or the accomplishments of the current government.

2. Immediate ratification of the International Covenant on Civil and Political Rights will honor the solemn pledge of the Chinese government, satisfy the fondest hopes of the Chinese people, and demonstrate China’s commitment to be a responsible world power.

When the United Nations passed the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights in 1966, it called on all nations to see both treaties as part of a whole, signing and ratifying both together. As of November 1, 2010, 167 of the 193 United Nations member countries had formally joined the International Covenant on Civil and Political Rights. In 2001, China ratified the International Covenant on Economic, Social and Cultural Rights, which has been referred to as the “second generation of human rights.” But today, 15 years after our country signed the International Covenant on Civil and Political Rights in 1998, it has still not ratified this treaty, which is regarded as the “first generation of human rights.” China’s government has placed its emphasis on the gradual improvement of China’s existing legal system in advance of ratification, so that it can accommodate the demands and various responsibilities of the treaty. However, the gap between the signing of human rights treaties and their ratification must still be kept within the realm of reason, in order to promote further progress on civil rights and political rights, and in order to avoid unnecessary conjecture from the international community.

As a Permanent Member of the United Nations Security Council, China has always been an active initiator and participant in the International Bill of Human Rights. China’s government played an important role in the formulation of the Universal Declaration of Human Rights (UDHR). International human rights standards are therefore not imported products but in fact include the achievements of Chinese culture and the Chinese people. The signing of the International Covenant on Civil and Political Rights 15 years ago demonstrated even more our country’s serious commitment to the protection of basic human rights as a responsible world power. Afterwards, both President Hu Jintao and Premier Wen Jiabao said openly on numerous occasions both at home and overseas that China would immediately take the legal steps to ratify the treaty once the conditions were right. In the beginning of 2008, more than 10,000 Chinese citizens signed a call for the ratification of the International Covenant on Civil and Political Rights. And so there is no longer any need to vacillate. In order to adapt to trends in human rights development, live up to our government’s pledges and answer the demands of the people, in order to behave in a manner consistent with a major power, we must join the treaty without hesitation, with a positive and decisive attitude.

As stirring as this letter is, I am doubtful that China’s adherence, or non-adherence to the ICCPR would make a big difference in advancing reform within China.  China is already a party to key human rights treaties, such as the Convention Against Torture and the Convention Against Genocide, but it is hard to tell whether being party to those treaties has made a big policy difference within China.  Moreover, the Chinese Constitution already guarantees many of the key rights in the ICCPR, but those rights are still rarely protected in China, and not all protected under Chinese law.

The larger question for international lawyers is whether human rights covenants like the ICCPR can or should be a vehicle for advancing a domestic political reform agenda.  I haven’t thought about this question enough, but I am skeptical that such treaties can play a big role and I’ve seen no empirical data that suggests it does make a difference one way or the other. (If I’m missing something, please feel free to post below). Indeed, such treaties can often be counterproductive to domestic reformers who lose some credibility by being too closely associated with foreign and international powers.

Don’t get me wrong. I’m all for advancing human rights and political reform within China. I just have doubts as to whether international human rights law is a useful vehicle for advancing this agenda.

Will China Participate in the UNCLOS Arbitration with the Philippines?

by Julian Ku

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.

Game Changer? Philippines Seeks UNCLOS Arbitration with China Over the South China Sea

by Julian Ku

In a potentially huge development, the Government of the Philippines announced earlier today that it has filed for arbitration with China under the UN Convention for the Law of the Sea. The Philippines’ claim places China’s controversial sovereignty claim over the South China Sea (see right) squarely before an international arbitral tribunal convened under Article 287 of UNCLOS.  According to the Philippines Foreign Minister, here are the main claims:

  1. The Philippines asserts that China’s so-called nine-dash line claim that encompasses virtually the entire South China Sea/West Philippine Sea is contrary to UNCLOS and thus unlawful.
  2. Within the maritime area encompassed by the 9-dash line, China has also laid claim to, occupied and built structures on certain submerged banks, reefs and low tide elevations that do not qualify as islands under UNCLOS, but are parts of the Philippine continental shelf, or the international seabed.
  3. In addition, China has occupied certain small, uninhabitable coral projections that are barely above water at high tide, and which are “rocks” under Article 121 (3) of UNCLOS.China has interfered with the lawful exercise by the Philippines of its rights within its legitimate maritime zones, as well as to the aforementioned features and their surrounding waters.
  4. The Philippines is conscious of China’s Declaration of August 25, 2006 under Article 298 of UNCLOS (regarding optional exceptions to the compulsory proceedings), and has avoided raising subjects or making claims that China has, by virtue of that Declaration, excluded from arbitral jurisdiction.

Some early thoughts.  As I argued here, I still think the Philippines has a massive jurisdictional problem because of China’s Article 298 declaration excludes the following certain subjects from this kind of arbitration.

(a)(i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles….

China is claiming (at least it has often seemed to be claiming) that it has complete sovereignty over the South China Sea (per the map above). I take the Philippines is arguing that China’s South China Sea claim is not really a “sea boundary  delimitation” within the meaning of Article 15.  Nor is the Chinese SCS claim about “historic bays” and “titles”.  I don’t think that the Philippines has a hopeless case, but I do think they will face a huge challenge to get any arbitral tribunal to assert jurisdiction here, especially since one judge will be appointed by China.

On the plus side, if the Philippines manages to get past the jurisdictional hurdle, it seems to me that they have a very good chance of prevailing since China’s claim is hard to square with the rest of UNCLOS.  Moreover, they force China to go on the defensive here without actually threatening China in any military or economic way.

Strategically, I think I understand why the Philippines has filed this claim. They have very little leverage with China: economically, politically, or militarily.  In this forum, the worst case scenario is the Philippines will lose on jurisdiction. This shouldn’t affect the merits of their claims, though.  For China, the worst case scenario is that it loses on the merits and would have to face the decision of whether to comply with the tribunal.  If they lose, I can see China simply withdrawing from UNCLOS.

In any event, I think it is safe to say this it a game changer in the long-running South China Sea dispute.  It is also, without question, the most important case that has ever been filed under the dispute resolution procedures of UNCLOS.  It will be a crucial test of the UNCLOS institutions, as well as of UNCLOS members.  I am skeptical that China will allow itself to be drawn into serious international adjudication (see my argument here), but it will be fascinating to see how China reacts.

The ATS and the USG Government Response, a Query

by Kenneth Anderson

An additional puzzle about the Alien Tort Statute is that there seems to be no satisfactory account, so far as I know, of the US government response to ATS cases.

Sometimes the US government responds with a statement of interest; sometimes it does not.  Even when it does offer a statement of interest, my anecdotal impression (if there was data collected, I’d be very interested) is that the US government often responds late in the proceedings.  So far as I can tell – indeed, I’ve never heard anyone contradict this – there is very little about the USG response in ATS proceedings to suggest that it seeks to protect executive power or authority or authoritative expertise in pronouncing on international law or the foreign policy interests of the executive in ensuring, as a matter of principle, that these matters remain with the executive and not the courts.  There is little if anything in USG behavior to suggest that successive administrations since Filartiga have taken a stand on principle of seeking to rein in or otherwise narrow the ambit of the courts in these matters.  That seems to be true across decades and multiple administrations of each party.  I find this puzzling …

60 Years of Occupation – Guess Where

by Eugene Kontorovich

In 1949, a land that had for hundreds of years been home to Muslim peoples was forcibly seized by outsiders. They implemented a policy of ethnic dislocation and colonization. While some of the Muslims, chafing under the occupation, turned to terrorism,  the recalcitrant state refused to budge even until today.

And the occupied country is (more…)