George Staunton, W. A. P. Martin and the transmission of foreign law

By Jerome A. Cohen  

Here is a good NYT interview with historian Stephen R. Platt about his new book, “Imperial Twilight: The Opium War and the End of China’s Last Golden Age.” It highlights the sad end to George Staunton’s remarkable career relating to China. That career began early with Staunton’s participation in the historic Macartney voyage to Peking in 1793 at age 13 when he reportedly impressed the Emperor with his newly-acquired Chinese language skills.

The high point of Staunton’s career, at least for those of us interested in the Chinese legal system and its interaction with the West, came with his 1813 publication of the first English translation of The Great Ch’ing Code. Having tried wine and women, if not song, to pass the time during the boring off-season in Macao while waiting for trade with the Mainland to reopen, Staunton made good use of the assistance of Chinese colleagues to produce this monumental work. It was stimulated by the recognition that successful business with foreigners requires familiarity with their legal system.

Staunton’s precedent was cited by missionary W. A. P. Martin (丁韙良) in the early 1860s in his campaign to persuade the authorities in Peking to translate Wheaton’s then leading Western text on public international law into Chinese. Martin believed that it would not only lead the heathen to Christ but, more practically, also help the Chinese cope with overzealous Western diplomats and traders whose demands were often couched in terms of international law. Some of the foreign diplomats living in China opposed the project for this reason. As Immanuel Hsu’s excellent book on the topic pointed out, the Chinese Government indeed successfully invoked the law of the sea principles recorded by Wheaton against Prussia even before the translation was published.

Israel’s Ties with China

By Jerome A. Cohen

Here is a very useful update on the complex Israel-China relationship, What’s Behind Israel’s Growing Ties With China?. It makes me recall the period 1979-81 when, long before the establishment of diplomatic relations between them, Israel was already secretly providing arms to China. Many of us who then inhabited the Peking Hotel knew what the lonely Israeli arms merchant, Shaul Eisenberg, who so often ate alone in the hotel restaurant, was up to.

 I was told at the time that Israel had enacted a special law exempting Eisenberg (or his company) from income tax on his China profits. His cooperation with Beijing undoubtedly laid the groundwork for gradually increasing Israeli-PRC contacts that led to the preparation for diplomatic relations. My awareness of this process crystallized when in the early ‘80s Peking University asked me to find it a Hebrew teacher and the money to support the teacher. Most of the small group of first students ended up working for Xinhua in Israel or in other relevant pursuits of the Israeli-PRC normalization (Xinhua is the New China News Agency, often used as a forerunner of formal diplomatic relations).

China’s seizure of underwater US drone and implications

China has returned the U.S. underwater drone (“unmanned underwater vehicle” or UUV) that it seized in the South China Sea last week. Plenty has been said about the illegality of China’s seizure, such as Julian Ku’s analysis here and that of James Kraska and Pete Pedrozo here. The PRC’s feeble and vague attempt to justify its action legally and the immediate move to return the drone certainly reflect its awareness of its poor legal position.

Politically China is using this incident to make the broader point of seeking to halt U.S. surveillance closer to China in what is plainly China’s Exclusive Economic Zone (EEZ), whether or not the PRC’s minority legal position prohibiting EEZ surveillance is acknowledged. The UUV incident is undoubtedly an effort to remind us of PRC objections to what is really “close in” surveillance.

Obviously, the attitude of the Trump administration will be crucial in determining whether the U.S. and China are headed toward military conflict. The U.S. government should devise plans for a more vigorous effort to negotiate detailed understandings about UUV and other surveillance activities. The PRC is likely to continue its resistance to such efforts unless it decides to follow Russia’s example by belatedly acceding to the majority rule permitting EEZ surveillance. Such a change in principle is unlikely in the foreseeable future because of the immediate importance to the PRC of insulating from American scrutiny the movements of its submarines in the South China Sea and because the tides there seem to be moving in China’s favor at the moment.

There is also the broader and even more dangerous problem America faces of continuing to protect Taiwan’s security as tensions mount in the Taiwan Strait. The Taiwan and South China Sea issues are related since they both involve the major question of the extent of the U.S. government’s continuing involvement in East Asia. Will there be any possibility of serious negotiations with Beijing on these matters in the near term? First, the U.S. government will have to prepare a strategy, one that will have the backing of a divided American people long tired of foreign wars but aware of East Asia’s importance to our security, of our accomplishments in the post-WW II era and of our values.

Working Towards Peace in the South China Sea

For those who follow South China Sea issues, I gave a talk on Oct. 18 at the National Committee on US-China Relations on " Working Towards Peace in the South China Sea," discussing the ramifications of the present situation in the region and offering some policy recommendations. Here is the video.

Peter Dutton's commentary on the significance of China’s response to the South China Sea arbitration award

Here is a brief comment worth reading on the PRC's response to the recent UNCLOS arbitration award. As Peter makes clear, the significance of China's response goes far beyond the specific dispute and raises the question of the reliability of any PRC international legal commitment including its economic pledges relating to One Belt One Road and Asian Infrastructure Investment Bank.

One hopes that the PRC will begin to recover from its major blunder through the quiet discussions that have begun with the Philippines. Previous PRC leaders have shown the capacity to modify unwise attitudes toward international law. Whether the current leadership is up to the task is probably doubtful but may depend on the extent to which other influential nations seek to demonstrate the undesirable consequences of Beijing's stance.

One important topic that has not received enough attention is where Taiwan fits into the equation. Unlike the PRC, the ROC was eager to take part in the Philippine arbitration proceedings. The UNCLOS tribunal, well aware that its decision on the merits of the many sensitive issues at stake would infuriate Beijing, went out of its way to avoid further offending the PRC in its handling of Taiwan's efforts to be heard. Taiwan could not take part in the proceedings, and the tribunal even refused to allow Taiwan observer status at the hearings, which had been granted to several interested Southeast Asian states. Moreover, the tribunal's opinion referred to Taiwan in a way that would not offend Beijing (but was sure to offend Taiwan). To its credit, and perhaps in order to please Beijing, the tribunal, while not formally accepting the strong "friend of the court" brief submitted by Taiwan's leading NGO - the Chinese (Taiwan) Society of International Law, on whether Taiping island (Itu Aba), the largest of the Spratlys and the only one occupied by Taiwan, is entitled to an Economic Exclusive Zone, did make the brief available to the parties and surely considered it before disagreeing with Taiwan's (and Beijing's) position. Taiwan's new government is now struggling with the dilemmas of how to respond to the tribunal's decision, which offended it not only in substance but also in procedure.

Why So Many Journalists Thought the Permanent Court of Arbitration Made the Philippines-China Decision

The South China Sea arbitration ruling was made by an arbitration tribunal set up in accordance with the United Nations Convention on the Law of the Sea (UNCLOS). However, when discussing the arbitration case, many news reports made the mistake of saying that it was the Permanent Court of Arbitration (PCA) that issued the ruling. Indeed, the context of the PCA’s actions and its very name as a ”Court of Arbitration” obviously throw newcomers and journalists off the track. Its Press Release, however, makes it status and role clear to the wary.

On page 3, the section on the PCA’s Background explains its origin long before the UN and its many contemporary functions as a site for and agent of various types of international dispute resolution arrangements. The PCA is a facilitator. It provides a splendid place for hearings and excellent administration that relieves the tribunal of endless burdens that come with every arbitration and that the arbitrators themselves cannot deal with. It even has a public relations office that captures public attention in the same way that its palatial hearing room does. Plainly, the PCA does not minimize its role.

Commercial arbitrators have to avail themselves of similar facilities and facilitating agencies, but usually the arrangements are less misleading. Some years ago, for example, I had to preside over a 12-day arbitration hearing in London in an investment dispute between a South Korean company and a Saudi Arabian company that had, per the contract, to take place under the arbitration rules of the International Chamber of Commerce. I asked a UK organization to handle all the host arrangements, which relieved me and the ICC headquarters in Paris of many tasks. But there was never any confusion over whether our tribunal’s decision was that of ICC arbitrators or of the facilitating organization.

Future UNCLOS arbitrations should make sure that such confusion does not arise if they again choose to benefit from the assistance of the PCA, as they undoubtedly will. 

South China Sea Ruling and Defamation

The press conference of the PRC Ministry of Foreign Affairs (MOFA) following the South China Sea arbitration award was surely one of the lowest of many low points in China’s response to the arbitration Tribunal. Here is what’s reported, Foreign Ministry Spokesperson Lu Kang's Regular Press Conference on July 13, 2016:

“Q: Vice Foreign Minister Liu Zhenmin told the press this morning that the then Philippine government gave bribes to judges of the Arbitral Tribunal, but did not go into details. Does the Chinese side believe that the bribes from the Philippines would make the judges rule in favor of them?

A: As we said before, the establishment of the Arbitral Tribunal has no legitimacy. It is illegal, and what it has done over the past couple of years was questionable. What Vice Foreign Minister Liu Zhenmin said this morning was that the Arbitral Tribunal was not an international tribunal and had nothing to do with the UN-affiliated International Court of Justice (ICJ) in the Hague. Judges of the ICJ and the International Tribunal for the Law of the Sea are paid by the UN to ensure their independence and impartiality. As for the five judges in this case, they made money, they were paid by the Philippines. I figure it necessary to make that clear.”

Of course, what constitutes libel or slander in one jurisdiction may not qualify in another (especially in China, where the source of the judges’ compensation guarantees their lack of independence!!). This MOFA reaction is based on so many distortions of the truth that the mind boggles but its implication certainly amounts to defamation in my eyes.

It would be good if the arbitrators, and even the Permanent Court of Arbitration that facilitated administration of the case, would file law suits against the PRC and its spokespersons in China and in some democratic countries where the defamation had effect, preferably including at least one Anglo-American country and one Continental European country in order to perfect this imaginative research experiment in comparative law!  

Tsai Ing-wen’s Response to the South China Sea Arbitration Award on Itu Aba

President Tsai Ing-wen yesterday addresses dignitaries and the crew of the frigate Dyi-huah at Zuoying naval base in Kaohsiung. Photo: ROC Ministry of National Defense

I think Tsai’s immediate response was disappointing. Why send a military vessel to protect Taiwan’s sovereignty over Itu Aba (Taipingdao) when the decision had nothing to do with sovereignty? Such uncharacteristic bluster (so different from Tsai’s response to Japan’s interference with Taiwan fishing within the preposterous Okinotori Exclusive Economic Zone (EEZ) claimed by Japan) may have played well at home but abroad it made Taiwan look like the PRC.

I think she should have announced her disappointment about the unfairness to Taiwan of having been excluded from an adequate hearing before the tribunal made its decision as well as about the decision on the merits (Although I liked the amicus brief submitted by the Chinese (Taiwan) Association of International Law, the tribunal’s arguments were more impressive, as I am about to publish in the Wall Street Journal today Beijing time.)  That would have made a better platform for then going on to say that, of course, Taiwan is prepared to take part in negotiations about how to resolve the problems in light of the new circumstances.

I don’t think the American people noticed Tsai’s actions at all. While the US Government can’t be happy with her initial response, the USG got what it wanted on this issue and surely understands Tsai’s felt need to deal with her public’s opinion.

The real challenge for Taiwan is whether to continue to press for an EEZ/Continental shelf for Itu Aba via some imaginative means. Being excluded from the United Nations Convention on the Law of the Sea and the UN, options are limited. Note that Ma offered ten suggestions re how to deal with the Itu Aba problem internally, but not one dealt with trying to reverse the decision or even what to do next externally in any way. 

My Letter to the Editor, NY Times

http://www.nytimes.com/2016/07/14/opinion/the-south-china-sea-dispute.html?ref=topics

To the Editor:

“South China Sea and the Rule of Law” (editorial, July 13), about China and the South China Sea arbitration, lacks only one important point. Surprisingly, you don’t mention that the United States, while urging all Asian states to respect the United Nations Convention on the Law of the Sea dispute-resolution institutions, has itself shamefully failed to ratify Unclos, something China did 20 years ago.

This puts us in the position of “do as we say, not as we do,” insulating us from similar challenges and denying us the opportunity to begin similar challenges.

It’s like a swimming coach who exhorts the swimmers but dares not wet his own feet!

JEROME A. COHEN

New York

The writer is a professor and director of the U.S.-Asia Law Institute, New York University School of Law.

A Few Immediate Implications of the South China Sea Arbitration Ruling

I think this ruling will add significantly to Xi Jinping’s internal problems. It was a disastrous call to thumb China’s nose at United Nations Convention on the Law of the Sea (UNCLOS) even while claiming to respect it, and the outcome gives many dissatisfied members of Beijing’s elite more fuel for the fire they are lighting under him. See my Sept 23, 2015 op-ed in the Wash Post the day he arrived in DC.

As to the dispute itself, I expect the PRC’s current threatening gestures to persist for a while but there will also be quiet attempts to make a face-saving deal with Duterte through economic incentives and even under the table influences. This may stimulate serious negotiations with other neighbors too.

Vietnam must be very happy, Indonesia too and perhaps Malaysia less obviously. I think Vietnam and Indonesia can credibly threaten to launch their own arbitrations unless Beijing gives assurances of better behavior and shows a genuine willingness to compromise. For Vietnam the problem is that China refuses even to have a bilateral negotiation over the Paracels, which matter at least as much as the Spratly group to Hanoi.

The decision may hearten Japan’s enthusiasm for arbitration or International Court of Justice (ICJ) adjudication over the Senkaku, and Tokyo may repeat its November 2012 pre-Abe offer by former Foreign Minister Gemba, who dared China to settle the dispute before the ICJ.

Photograph: Hearing in session, July 2015, Peace Palace, The Hague, Photo Credit: The Permanent Court of Arbitration

The tribunal’s interpretation of Article 121.3 has the healthy effect of reducing the importance of all these islands by denying them exclusive economic zones (EEZs) and continental shelves, which will eventually make it easier to deal with these issues.

I hope the tribunal’s decision will encourage the US Senate finally to consent to UNCLOS ratification. The fuss over this arbitration leaves America with egg on its face!

Perhaps Taiwan is the most interesting place to watch as Tsai Ing-wen struggles to adjust to an uncomfortable situation. Today’s response openly rejecting the decision is a big mistake and different from what even Ma would have done. Tsai will be criticized at home for following Beijing’s lawless line at the same time that Beijing was responsible for excluding Taiwan from participation in the arbitration.

China’s Disregard for the International Rule of Law

Here’s William Nee’s first-rate essay on the insights into criminal “justice” in China offered by the Booksellers’ case.

Photo Credit: Flags of member nations flying at United Nations Headquarters, United Nations Photo, Flickr

I would only add: The Chinese Government can too often hide its disregard for international human rights standards as well as its own national laws. Yet we must continue to expose such violations as much as possible. For example, as John Kamm points out, the UN Working Group on Arbitrary Detention has once again condemned PRC criminal procedure abuses, on this occasion for the first time involving an American citizen.

This Tuesday’s decision by the UN arbitration tribunal in the Philippine maritime dispute with China will highlight another area in which the PRC has shown its contempt for the international rule of law. Unfortunately, in its defense, all too often the PRC is able to cite previous United States violations.

Chinese Think Tanks: Confidential Messengers and Idea Sources as Well as Spear Carriers for Their Government

Here is a noteworthy report by Isaac Stone Fish in Foreign Policy, Beijing Establishes a D.C. Think Tank, and No One Notices.

I would only add to this useful analysis the following: In their publications and public speeches, those who work at Chinese think tanks do indeed tend to be spear carriers for their government, with varying degrees of subtlety and effectiveness. Two opposing extremes were on view, for example, at the annual meeting of the American Society of International Law in Washington on April 2, where the South China Sea was discussed. Dr. (Ms.) HONG Nong made a gentle, respectable argument designed to elicit the attention, if not agreement, of the mostly American legal specialists present. The other Chinese speaker, injected into the panel as a result of pressure from the PRC government, proved a disaster who infuriated the crowd by his blatantly unfair efforts to attack the legitimacy of the United Nations Convention on the Law of the Sea dispute resolution process. He reminded me of Molotov, the Hammer, in the good old days of Stalin.

What the thoughtful Foreign Policy article does not discuss is the valuable roles that Chinese think tanks play in conveying foreign information and ideas to PRC decision-makers and in quietly suggesting their own ideas for consideration. In the current Chinese political climate, the latter sometimes requires courage!

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.

A biographical sketch of Mr Chen Guangcheng

I have written a short biographical sketch of Mr Chen Guangcheng, the blind “barefoot lawyer” who escaped post-prison house detention in China in 2013, sought refuge in the US embassy and eventually set foot in the US. This sketch has just been published in the Berkshire Dictionary of Chinese Biography, Vol. 4.

Those interested in how Beijing and Washington negotiated over Chen Guangcheng’s departure for the US can read Chen’s account in his book, The barefoot lawyer: A blind man’s fight for justice and freedom in China, as well as Hillary Clinton’s differing account in her own, Hard choices. I first offered my own, slightly different view of the Embassy portion of the negotiations in the Washington Post here and the Wall Street Journal here, based on long phone calls that Chen made to me during his stay in the Embassy.

A false choice between acceding to China’s excessive claims in the South China Sea and gunboat diplomacy: a third way is obvious!

By Jerome Cohen

Chinese leader Xi Jinping’s remarks on the South China Sea (SCS) on Saturday morning in Singapore have been under-analyzed. The rest of his day, spent with Taiwan’s President Ma Ying-jeou, has distracted people from the more immediate challenge of the SCS.

Simon Winchester’s op-ed in New York Times helps us to regain focus. But what I find so infuriating is his assumption that the US is faced with a choice of either acceding to China’s “stealthy seizure of scores of barely visible islets and atolls “ or challenging its “admirable cunning” and “purloining” through risky gunboat diplomacy. No mention at all of the obvious option of challenging China’s actions and its vague but broad claims before the international legal tribunals of impartial experts established to settle disputed claims in a peaceful, civilized manner.

The Arbitral Tribunal in Philippines v. China, photo released by the Permanent Court of Arbitration

Bravo for the Philippines, whose arbitration against China, which the PRC fears and rejects, is gradually approaching a climax that will shake up the current scene. As Manila has made clear, international legal institutions are the last resort of the weak against the strong.

Why can’t the great powers and their policymakers and commentators appreciate that international tribunals can prove very useful in resolving or at least shrinking many potentially dangerous disputes? Modi’s surprisingly wise acceptance of the arbitration decision largely favoring Bangladesh over India in their Bay of Bengal dispute is another illustration worth study. That is the way to keep the peace in hotly-contested areas.

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. 

Can the Press get Chinese President Xi Jinping to answer an impromptu question?

by Jerome Cohen

Chinese President Xi Jinping arrived in Seattle on Tuesday for his first state visit to the US. Now that he is in America, can the press ask him unscripted questions? In fact, these visits from PRC leaders are staged to avoid direct, unapproved questions. Things are generally scripted to go smoothly and “avoid offense”. Yesterday’s WSJ interview, in writing (English, Chinese), is generally the best one can get, and that is a coup. Even his dinner hosts will find it hard to find a moment for a real conversation. Former Prime Minister Zhu Rongji was a rare exception because he could field public questions, even in English, and often gave bold, off the cuff answers.