China's (Ironic) Role in the Law of the Sea

By Jerome A. Cohen 

It was recently reported that Duan Jielong, the Chinese ambassador to Hungary, was elected a member of the International Tribunal for the Law of the Sea (ITLOS). Although the PRC has appointed its ambassador to a land-locked country to be its representative on ITLOS, Duan is a specialist in international law, as he served as the head of the Ministry of Foreign Affairs’ Department of Treaties and Law earlier in his career. His most recent ambassadorial appointment may have been designed to broaden his experience and resume. However, many ironies remain! 

What deserves noting is that ITLOS, although named the International Tribunal for the Law of the Sea, does not get to decide all of the most important law of the sea issues, due to the flexible menu of options that UNCLOS provides member states while compelling them to accept compulsory dispute resolution of one kind or other. As some know, the 2016Philippine arbitration award that is finally being propelled to the attention it warrants was not an ITLOS decision but that of a panel of five well-known experts selected in accordance with UNCLOS alternatives to ITLOS. If, as perpetually threatened, Vietnam finally brings itself to initiate an UNCLOS arbitration against China, it, like the Philippines, may decide to avoid ITLOS.

Serving as the PRC’s ambassador to Hungary may not be the most demanding of diplomatic positions, but serving as its representative on ITLOS may seem like a well-deserved vacation, certainly compared to serving as head of the PRC’s Treaty and Law Division, which does have to deal with all law of the sea disputes as well as the multitude of other international law issues in which the PRC is embroiled.

In view of China’s prominence, I don’t think it unwise to have a permanent PRC representative on ITLOS (since the tribunal’s establishment in 1996, there have been three Chinese judges), even while the PRC flagrantly inflicts upon itself the grave wound of contemning the result of the UNCLOS dispute resolution processes to which it committed itself in ratifying the treaty. Even though both the PRC and the United States refuse to submit to the compulsory jurisdiction of the International Court of Justice, it is nevertheless useful to have their perennial able experts on the ICJ. “Hope springs eternal….”

We should recall that a major reason why the United States, unlike the PRC, the Philippines, Vietnam and so many other states, has disgracefully refused to ratify UNCLOS is the US unwillingness to submit itself to the compulsory dispute resolution system that is one of this great treaty’s most distinctive features.

Finally, it is worthwhile yet again to emphasize that the Philippine arbitration award is NOT the product of the Permanent Court of Arbitration in the Hague, which only provided its admirable facilities for the litigation.

[New Article] Law and Power in China’s International Relations

By Jerome A. Cohen

I've just uploaded on my SSRN another recent article —"Law and Power in China’s International Relations," which is slated to appear in the New York University Journal of International Law and Politics (JILP) in the Summer of 2019.

This article follows the line of investigation in my 1974 two-volume book co-authored with the late Professor Chiu Hung-dah, People's China and International Law: A Documentary Study, which looked into China's attitudes towards international law. Of course, the book was published in a time when scholars had a challenge finding sources about China's theory and practice of international law in certain respects. Now we're confronted with a different challenge, which is how to thoroughly and thoughtfully investigate an expansive China as it is taking on an increasingly active role in the international arena. I hope that this article offers an up-to-date summary of some important aspects worth considering. I'm pasting the abstract below. Comments are welcome!

Law and Power in China’s International Relations

New York University Journal of International Law and Politics (JILP), Vol. 52, 2019 (forthcoming 2019)

33 Pages Posted:

Jerome A. Cohen

Date Written: April 17, 2019

Abstract

This Article offers a much-needed updated examination of China’s resort to international law in its international relations, one of the most important and controversial topics facing today’s world. The Article analyzes a range of significant subjects concerning China’s contemporary theory and practice, including its WTO experience, territorial and maritime disputes, bilateral agreements concerning civil and political rights and multilateral human rights treaties. Noting that the current rules-based order appears unable to significantly restrain the exercise of China’s growing power, I argue that Beijing’s present attitude toward international law, which thus far seeks piecemeal changes issue by issue, may be in transition, inching gradually toward a more innovative, broader approach that shapes international law in ways that some observers see as resurrecting traditional China’s prominence in East Asia and that others fear reflect even grander ambitions. China’s growing power, however, is not as securely-based as widely-assumed, and we should not underestimate the extent to which China’s views are influenced by its interactions with the United States and its perception of American practice of international law.

Keywords: China, international law, WTO, territorial disputes, maritime disputes, bilateral agreements, human rights treaties, US-China relations

Taiwan-Japanese Relations and a Rock!

By Jerome A. Cohen

Aerial view of Okinotorishima, Japan. (source: 国土交通省関東地方整備局, Japan)

Taiwan and Japan, despite the absence of formal diplomatic relations, have just signed another agreement and four MoUs on commercial and various matters, in the context of closer ties since President Tsai Ing-wen took office in Taiwan in 2016. I wonder what is going on in the quiet negotiations between Taiwan and Japan over the more sensitive Japanese claim that Okinitorishima is entitled to an Exclusive Economic Zone (EEZ) of 200 nautical miles and therefore Japan can restrict Taiwan fishermen from large and rich areas.

The 2016 Philippine arbitration award against China could be invoked by Taiwan in support of its opposition to the EEZ claim but it may be impolitic for Taiwan to do so in light of its need for Japan’s support in other matters (additionally, the arbitration award is not legally binding on Taiwan since Taiwan was not allowed to be a party to the arbitration proceeding, and Taiwan has therefore rejected the arbitration award).

Japan and Taiwan will probably try to work out a compromise on this issue before the 2020 presidential election in Taiwan in light of a possible KMT return to power that would oust Tsai’s DPP administration. The KMT administration of President Ma Ying-jeou (2008-16) was openly hostile to Japan on this fishing rights issue. The EEZ claim, giving Japan control over the resources of a huge sea area, has implications that go far beyond fish and is based on tiny islands not much larger than a king-size bed!

Settling law of the sea disputes: international law is better than gunboats!

By Jerome A. Cohen

Subi Reef, May 2015, by United States Navy [Public domain], via Wikimedia Commons

Here’s a piece from the WSJ on French warships asserting freedom of navigation in international waters in the South China Sea—The French Navy Stands Up to China. It may be helpful to emphasize that the location of the ship, airplane, other object or person in question is indeed a critical fact in these disputes. It’s like the secret of success in the hotel business— “location, location, location.”

More broadly, we also should not overlook the obvious, yet seldom-mentioned, fact that the disputing nations have peaceful means at their disposition to settle their many conflicting claims to territory, maritime boundaries and United Nations Convention on the Law of the Sea (UNCLOS) interpretations. Negotiation, mediation, arbitration, and adjudication are all set forth in the UN Charter, and UNCLOS and other pieces of international legislation provide details regarding the possibilities. It is not good enough for the U.S., China, France and others to employ gunboats to vaguely raise their claims in a threatening manner.

The Philippines, in its stunning arbitration claims against China, did try to resort to law and a decision by some of the world’s acknowledged independent legal experts in order to defend itself against a much stronger power. The durability and significance of the UNCLOS tribunal’s monumental arbitration award against China is now being tested, especially by a Chinese Government that is seeking to undermine the award in multiple ways.

The U.S. should ratify UNCLOS and subject itself to the UNCLOS compulsory dispute resolution procedures, as other states have. It would be good if Vietnam, Malaysia and other claimants were to challenge China to settle their disputes over who owns the Spratlys before the International Court of Justice. It would be good if Japan, whose Foreign Minister did challenge China to settle their Senkaku/Diaoyu dispute in the East China Sea before the ICJ in 2012, would also challenge some of China’s law of the sea actions and interpretations via the UNCLOS dispute resolution procedures, in the South China Sea as well as the East China Sea. And Vietnam, Malaysia, Indonesia and others should also resort to those procedures to settle their various maritime claims. France should also explore its legal possibilities for contributing to peaceful settlement.

Since the U.S. has shamefully not ratified UNCLOS, that treaty’s procedural options are denied to Washington, which can only coach from the sidelines. In the long run Asian states may want to develop their own regional institutions for handling these problems, but they can do a lot even now. Gunboats are not the only weapons. We can and should make better use of the “weapons” of international law to help settle increasingly dangerous disputes.

Taiwan’s peaceful use of Taiping Island highlights China’s militarization in South China Sea

By Jerome A. Cohen

Here is a very good essay by Steven Myers of the NYTimes on “Island or Rock? Taiwan Defends Its Claim in South China Sea.” The draftsmen of the United Nations Convention on the Law of the Sea (UNCLOS) could have spared the world a lot of confusion had they done a better job. Obviously Taiping Island is an island not only by the definition agreed on in UNCLOS but also in our common vernacular. But Article 121 of UNCLOS should have made it clearer that it deals with two types of islands—those entitled to a 200 nautical mile Exclusive Economic Zone (EEZ) and those that are not. By calling the latter mere “rocks” the draftsmen set the stage for misunderstanding by the general public concerning the decision of the arbitral tribunal in the Philippines-China dispute since any observer can see that Taiping Island is an island in the commonly understood sense. As the tribunal concluded, however, Taiping Island is not an island entitled to an EEZ in accordance with the criteria stated in Article 121. If every small island were allowed an EEZ, it would produce chaos and conflicts in maritime affairs.

The best part about the Myers story is its emphasis on the peaceful uses to which Taiwan is putting its occupation of the island, in contrast to the militarization by China of features that it has occupied, some of which are not even properly subject to identification as islands at all because, in their natural state, they are not above water at high tide as Taiping Island is.

As Beijing began its artificial constructions on and militarization of these always submerged or low tide reefs and tiny islands – much tinier than Taiping Island, it had tried to assure the world that it was taking these actions largely for non-military purposes, thereby inspiring some of us to suggest that it demonstrate its peaceful intentions by allowing other states to share the use of these features and thereby avoid the crisis that Chinese military bases would inevitably induce. I also suggested that Taiwan open Taiping Island to a variety of international activities. Sadly, at this point, the multilateral option—always unlikely—now seems to be definitively off the charts, leaving the U.S. and China to search for other possible ways to resolve their emerging clash of interests.

What might be the end game of the South China Sea arbitration?

Jerome A. Cohen

As the result of the arbitration case filed by the Philippines government against China on South China Sea questions is imminent, people are wondering how Beijing will react and what might happen next. I have offered the beginning of an answer in the speech I gave to the April 14 Soochow University comprehensive conference in Taipei on the issues involved (video below; link here).

My hope, of course, is that at some point after the decision is announced, the parties will resume negotiations on the basis of the tribunal’s decision concerning the fifteen or so issues before it. To save China’s face, there would be no need for explicit reference to the arbitration in any agreement that might emerge. There may be a fairly long period before the PRC decides to negotiate on the basis of the arbitration decision.

In the interim other claimants may bring their own arbitrations against China on similar or related issues. Each arbitration tribunal can render its own independent decision on the jurisdiction and the merits.

Can people imagine how things might look to China and the world, for example, if Vietnam, Malaysia and Indonesia each brought separate suits against China seeking to confirm the Philippine tribunal’s invalidation of the “9-dash line” and if in each case the five experts, who might be totally different from the arbitrators in each of the other proceedings, arrived at the same decision as the Philippine tribunal? The same thing might happen regarding the issue of whether any of the islands in question is entitled to an Exclusive Economic  Zone and continental shelf.

I like the Chinese phrase “xuyao yige guocheng” 需要一个过程 (everything requires a process, i.e., Rome wasn’t built in a day). During this period the other claimants might seek to use their arbitrations to obtain orders against China to cease their questionable “reclamations” pending the outcome of each case.

Of course, since my April 14 speech the Philippines has elected a new president, whose attitude and policy toward China are as yet unclear. It is rumored that, if no arbitration decision has been rendered before he takes office July 1, President Duterte might seek to negotiate a settlement with China and then withdraw the request for arbitration before the decision is announced, saving China’s face.

This video was filmed for a panel discussion in the International Conference on the South China Sea Disputes and International Law hosted by Taiwan's Soochow University School of Law in Taipei on April 14, 2016. For the program of the Conference, see http://163.14.2.167/law/conference/5116/18.

Taiwan’s position on the South China Sea disputes: an emerging subtle policy

At least while President Ma remains in office, Taiwan is not remaining passive either politically or diplomatically re the South China Sea (SCS). Nor should we assume that its choice – during Ma or afterward – is limited to the two extreme options of either endorsing Beijing’s questionable and vague claims or surrendering Taiwan’s claims to the SCS under the mantle of the Republic of China (ROC).

A more subtle policy may be emerging, one that retains China’s territorial claims and the maritime boundaries that attach to them under the United Nations Convention on the Law of the Sea (UNCLOS) while veering away from the 9-dash line and its controversial ambiguities that the Philippine UNCLOS arbitration tribunal may soon sweep away.

It is worth studying the statement issued October 31 by the ROC’s MOFA. The ROC seems to be clarifying its position, including some important differences with the Mainland. Although it rejects the Philippine UNCLOS arbitration tribunal’s jurisdiction as not binding upon it (after all, it has been excluded from the proceedings since it is excluded from UNCLOS), it repeatedly emphasizes that its claims are “based on UNCLOS”. It claims all the islands in dispute “as well as their surrounding waters”. It seems to be emphasizing “surrounding waters” as generally understood in international law (i.e., under UNCLOS) without invoking the 9-dash line’s most expansive view of what “surrounding waters” might mean if history were invoked to override UNCLOS. Moreover, it pointedly endorses freedom of navigation and overflight and implicitly fails to support the actions of the People’s Republic of China (PRC) in converting mere reefs into islands by the manner in which it demonstrates that the feature that it has long occupied and developed, Itu Aba (unlike other contested features including Subi reef), is a real island that can be claimed as “territory” and has a 200-mile EEZ as well as a 12-mile territorial sea. Taiwan is trying to steer between Scylla and Charybdis.

One of Xi Jinping’s motives in meeting Ma may well be the desire to shore up virtually the only support the PRC thus far has elicited from other jurisdictions for its SCS claims. ROC defection from the 9-dash line, especially before the UNCLOS tribunal’s final decision, would leave the PRC without any respectable support for its Gargantuan appetite.   

What states should do to resolve the current “High Noon” scenario in the South China Sea: “bombard the headquarters” in Beijing with international law claims

by Jerome Cohen

Spratly Islands, South China Sea, by Storm Crypt.

The US began on October 27th its first freedom of navigation operation (FONOP) near China’s man-made islands in the South China Sea. This whole exciting story would be seen for the comic farce it is were the situation not so dangerous.

The US and China have put forth some legal claims with regard to their rights in the South China Sea. But neither major contender takes the obvious step to have the claims determined by the world’s greatest impartial experts in the subject. Although the US, by failing to ratify the United Nations Convention on the Law of Sea (UNCLOS), has deprived itself of the possibility of bringing an UNCLOS arbitration against China, as the Philippines has brilliantly done, it could offer to take the dispute to the International Court of Justice, where both Washington and Beijing have able judges, or to an ad hoc arbitration tribunal agreed to by both parties.

China has got itself out on a long and shaky limb. Its claim to “sovereignty” over these low-tide elevations is preposterous. Even if it had a plausible claim to these features as its “territory” and thus to a territorial sea around them, under UNCLOS (not China’s unilateral domestic law) it would still not be allowed to bar even warships from “innocent passage”, i.e., passage that is consistent with the detailed UNCLOS rules.

To be sure, the US makes no territorial claim for itself regarding sovereignty over the reefs in question, but it does apparently reject China’s claim and any claim by others that low-tide elevations can become the “territory” of any state. The US, as I have often said, should accompany its current bold gesture of using the fleet to protest China’s provocative over-reaching by also resorting to more conventional peaceful means of settling disputes through arbitration or adjudication.

We should also be persuading other states, including Japan, to “bombard the headquarters” of the CCP in Beijing, not with missiles but with missives daring the PRC to test its international law claims before tribunals of the world’s leading impartial experts.

Timing is everything in life, and my minimal hope is that the current “High Noon” scenario in the South China Sea will build slowly enough to be overtaken in a few months by the UNCLOS arbitration decision in the case brought by the Philippines against the PRC two and one-half years ago (see the October 29 UNCLOS Tribunal ruling to proceed to the merits of some claims and reserves the question of jurisdiction for others). Whatever the tribunal decides should shake up the current situation.

South China Sea Disputes: Lawfare instead of Warfare!

by Jerome Cohen

Spratly Islands, South China Sea, by Storm Crypt.

The US Navy is preparing to send a ship inside the 12-mile territorial sea China (the PRC) reportedly claims for its controversial man-made island chain in the South China Sea, according to this report. 

To defuse the rising tension in this area, the US and other countries should resort to international legal institutions, rather than warfare.

The US Senate should seize the opportunity presented by the heightened public interest in the Law of the Sea to finally ratify US adherence to The United Nations Convention on the Law of the Sea (UNCLOS). It would give us greater credibility by subjecting our country to the same dispute resolution constraints that all state-parties to UNCLOS, including the PRC, are legally bound to accept, and it would offer us what we are now denied – the opportunity to challenge PRC maritime claims before an impartial arbitration tribunal, as the Philippines has done.

The value of this opportunity should not be underestimated even if the PRC continues to formally thumb its nose at Manila’s challenge (while seeking to answer it outside the tribunal’s jurisdiction). I do not think most observers appreciate the momentous nature of the Philippine case, which seems to be coming to a head more quickly than previously anticipated. The tribunal’s decisions on jurisdiction and perhaps at least some of the substantive issues have the potential to be a game changer in an increasingly dangerous and uncertain situation. 

All the countries concerned with PRC maritime assertiveness need to respond to the South China Sea crisis with greater collaboration. But, in addition to focusing on political/military gestures, they should be “bombarding the headquarters” in Beijing with international arbitration and International Court of Justice (ICJ) claims that will test the PRC’s actions before respected international legal institutions.

Any hopes Beijing may have for “soft power”, already blocked by its domestic legal misconduct, will be obliterated if the world community condemns it for rejecting itsUNCLOS obligations re maritime issues and the ICJ or ad hoc tribunals for deciding territorial disputes. Only active collaboration by the various countries involved can bring these peaceful ways of settling disputes to the attention of Xi Jinping himself and stimulate reconsideration of the PRC’s current course.

Unfortunately, until now, although there is strong potential support in each of the relevant countries on China’s eastern and southern periphery for lawfare instead of warfare, each finds political reasons for passivity and avoiding Beijing’s wrath in the hope that the Philippines will be successful.  In the meantime, the PRC has been quietly using every means possible to terminate the Philippine effort before the tribunal reaches what may be a damaging decision for Beijing. Time is a factor here since there will be a new Manila administration by mid-2016, and the PRC’s blandishments and pressures might prove more effective with the new Manila power-holders than with the current government, which has already felt and thus far resisted their force.