USALI Affiliated Professor Eva Pils Quoted in Guardian Article

April 28, 2017

China convicts rights lawyer Li Heping of 'subversion of state power'

Li, once told that China considered him ‘more dangerous than Bin Laden’, sentenced in secret trial to three years in prison with a four-year reprieve

A respected Christian human rights lawyer has been convicted of “subversion of state power” at a secret trial in China, almost two years after he was first detained in a sweeping crackdown.

Li Heping was sentenced to three years in prison with a four-year reprieve, the court in the eastern city of Tianjin said on an official social media account, meaning he should be released but could be arrested and jailed at any point.

The trial was held behind closed doors on Tuesday because “the case involved state secrets”, the court said, but was only announced along with the verdict on Friday.

 

'I want to rescue my dad': children's heartbreak for the lawyers China has taken away

Li was swept up in a nationwide crackdown on rights lawyers and activists in July 2015, where police detained or questioned about 250 people. Since assuming power, China’s president, Xi Jinping, has launched a new wave of attacks on activists and the lawyers who defend them.

Li’s case drew attention around the world, and EU officials, as well as the embassies of 11 countries, called for his claims of torture while in custody to be investigated. His wife has said authorities used electric shocks on him.

“A suspended sentence does not mean he’s free until we actually get to see him and he’s allowed to speak freely, and given what we’ve seen in the past that probably won’t happen,” said Eva Pils, a professor at King’s College London and longtime friend of Li.

“It was a secret trial so we don’t know what state he is in,” Pils added. “In addition to our usual concerns about torture and physical health, I’m worried that this entire process may have robbed him of his mental health, especially after what they’ve apparently done to his brother.”

Li’s younger brother, Li Chunfu, emerged from 500 days of secret detention in January and was later diagnosed with schizophrenia, according to his family.

Li became well known for defending the disenfranchised, including Christian house churches, victims of forced evictions and free speech advocates. He worked within the scope of China’s legal system, rather than taking to the streets in protest. One Chinese security agent reportedly once told Li that the state considered him “more dangerous than Bin Laden”.

Although Li is likely to be released in the coming weeks, he has already spent more than 20 months in detention. At least 11 activists who received suspended sentences disappeared shortly after they were released, with some forced to undergo months of political education classes before being placed under house arrest by local police, according to human rights groups.

The court’s verdict was seen as a warning to other activists, and included a catalogue of vague charges, without citing any specific examples of illegality.

“The court ruled that since 2008, the defendant Li Heping repeatedly used the internet and foreign media interviews to discredit and attack state power and the legal system,” the court said. The court also accused Li of accepting foreign funds and employing paid defendants.

A lawyer hired by Li’s family to defend him was rejected by authorities and he was ultimately given a government appointed lawyer, an increasing trend in political prosecutions.

The conviction came on the same day that another civil rights lawyer, Xie Yang, was set to go on trial, but it was later cancelled.

Read the full article here.

USALI Affiliated Professor Eva Pils Quoted in Reuters Article

June 5, 2017

China activists fear increased surveillance with new security law

By Christian Shepherd

(Refiles this May 25 story to add "Chinese" to advocacy group's name in paragraph 13.)

By Christian Shepherd

Chinese activists say they fear intensified state surveillance after a draft law seeking to legitimize monitoring of suspects and raid premises was announced last week, the latest step to strengthen Beijing's security apparatus.

Half a dozen activists contacted by Reuters say they already face extensive surveillance by security agents and cameras outside their homes. Messages they post on social media, including instant messaging applications like WeChat are monitored and censored, they said.

The draft of a new law to formally underpin and possibly expand China's intelligence gathering operations at home and abroad was released on May 16.

However, the law was vaguely worded and contained no details on the specific powers being granted to various state agencies.

"State intelligence work should...provide support to guard against and dispel state security threats (and) protect major national interests," the document said.

The law will give authorities new legal grounds to monitor and investigate foreign and domestic individuals and bodies in order to protect national security, it said.

Public consultation for the draft ends on June 4. It is unclear when the final version may be passed.

Hu Jia, a well-known dissident, said the release was met with fear and despair in his circle of reform-minded activists, where it was seen as a sign of strengthening resolve in the ruling Communist Party to crush dissent.

"Before, the party acted in secret, but now they have confidence to openly say: 'We are watching you'," Hu told Reuters.

"The law is also partly to frighten people ahead of the 19th Party Congress; to tell them to be careful, to be quiet," he added. Hu was referring to the once in five years congress of the Communist Party likely to be held in October or November in which President Xi Jinping is likely to further cement his hold on power by appointing allies into the party's inner core.

Read the entire article here.

Peter Dutton. Isaac B. Kardon. LawFare. "Forget the FONOPs — Just Fly, Sail and Operate Wherever International Law Allows"

June 10, 2017

Written by Affiliated Professors Peter A. Dutton and Isaac B. Kardon

On May 24, the guided-missile destroyer USS Dewey (DDG 105) operated within 12 nautical miles (nm) of Mischief Reef, a disputed feature in the South China Sea (SCS) controlled by the People’s Republic of China, but also claimed by the Philippines, Taiwan, and Vietnam. The Dewey’s action evidently challenged China’s right to control maritime zones adjacent to the reef —which was declared by the South China Sea arbitration to be nothing more than a low tide elevation on the Philippine continental shelf.  The operation was hailed as a long-awaited “freedom of navigation operation” (FONOP) and “a challenge to Beijing’s moves in the South China Sea,” a sign that the United States will not accept “China’s contested claims” and militarization of the Spratlys, and a statement that Washington “will not remain passive as Beijing seeks to expand its maritime reach.” Others went further and welcomed this more muscular U.S. response to China’s assertiveness around the Spratly Islands to challenge China’s “apparent claim of a territorial sea around Mischief Reef…[as well as] China’s sovereignty over the land feature” itself.

But did the Dewey actually conduct a FONOP? Probably—but maybe not. Nothing in the official description of the operation or in open source reporting explicitly states that a FONOP was in fact conducted. Despite the fanfare, the messaging continues to be muddled. And that is both unnecessary and unhelpful.

In this post, we identify the source of ambiguity and provide an overview of FONOPs and what distinguishes them from the routine practice of freedom of navigation. We then explain why confusing the two is problematic—and particularly problematic in the Spratlys, where the practice of free navigation is vastly preferable to the reactive FONOP. FONOPs should continue in routine, low-key fashion wherever there are specific legal claims to be challenged (as in the Paracel Islands, the other disputed territories in the SCS); they should not be conducted—much less hyped up beyond proportion—in the Spratlys. Instead, the routine exercise of freedom of navigation is the most appropriate way to use the fleet in support of U.S. and allied interests.

Read the entire article here.

Margaret K. Lewis. ChinaFile Conversation. "The World Is Deserting Taiwan. How Should the U.S. Respond?"

On June 14, USALI Affiliated Professor was featured in a ChinaFile Conversation. Below is an excerpt from the conversation which featured several experts. 

On June 12, the small Central American nation of Panama announced it was severing diplomatic ties with Taiwan so that it could establish relations with the People’s Republic of China. Now, only 19 countries and the Vatican recognize Taiwan. Why did this happen? How does it affect Taiwan’s relationship with the mainland? Should the United States get involved in preventing the further diplomatic isolation of Taiwan? —The Editors

From Margaret K. Lewis: The Democratic Progressive Party (DPP) took back power last year on an upbeat campaign that it would “Light up Taiwan” (點亮台灣), but President Tsai Ing-wen must be feeling anything but sunny at this moment.

The president continues to struggle in opinion polls, with the economy remaining a point of deep concern: compared with many of Taiwan’s formal diplomatic allies, Panama was a fairly large trading partner. Yes, the loss of diplomatic relations with Panama will have a small effect on Taiwan’s total foreign trade. Yet it is notable as another straw on the proverbial camel’s back, building on other economic pressure from Beijing, such as moves to curb mainland visitors that provide crucial tourism revenue in Taiwan.

The diplomatic mood with the mainland is dreary as well. Combined with the loss of diplomatic relations with Sao Tome and Principe in December 2016, Panama’s diplomatic switch signals an unfortunate return to the days of “dollar diplomacy” where China and Taiwan used economic sticks and carrots to woo diplomatic allies. It is unlikely that Beijing will relax its pressure as long as Tsai stands firm in her refusal to recognize the “1992 consensus”—a political formula recognized by her predecessor, Ma Ying-jeou, under which both sides of the Strait acknowledged that Taiwan and the Mainland are part of “one China” but maintained their own interpretations of what that meant. Indeed, there threaten to be darker days ahead if the recent criminal subversion charges by China against Taiwanese human rights activist Lee Ming-che indicates future trends.

I question the wisdom and efficacy of the United States getting directly involved in bilateral relations between Taiwan and its remaining diplomatic allies. Instead, the United States should focus on how to increase Taiwan’s international space in key multilateral institutions for which statehood is not a prerequisite, because it is in the United States’ interests. In particular, the United States should continue to press for Taiwan’s participation in the World Health Organization (WHO). In May, Beijing once again blocked Taiwan’s inclusion in the World Health Assembly, the governing body of the WHO. Pathogens do not care about diplomacy: Leaving Taiwan outside of the WHO hampers the international community’s ability to prepare for and respond to disease outbreaks.

Taiwan is also shut out of the International Civil Aviation Organization (ICAO). This exclusion is especially concerning considering Taiwan’s position in an extremely busy section of East Asian airspace. The bottom line is that including Taiwan in international health and air-traffic safety is good for the safety of American citizens (not to mention Chinese citizens, as well), which is good reason for the United States to press Beijing to remove the obstacles it places in Taiwan’s path. Perhaps it is time for a new slogan: “Lighten up on Taiwan.”

Read the entire article here.

Margaret K. Lewis. CFR. "What Would Trump Do if There Were Another Tiananmen Incident?"

May 31, 2017

Margaret K. Lewis is a professor of law at Seton Hall University School of Law and a Fulbright research fellow at National Taiwan University School of Law.

As the world reflects on this week’s anniversary of the Tiananmen Square protests and subsequent violent crackdown by the PRC government, it is worth contemplating what President Donald J. Trump would do if faced with a similar situation. When asked about Tiananmen during the campaign, Trump said he was not “endorsing” China’s response, but he called the demonstrations a “riot.” Would President Trump see a riot or a massacre if the events of June 4, 1989, were replayed today?

The U.S. bombing raid in April that President Trump linked to the Syrian government’s use of chemical weapons against civilians suggested that human rights would be prominent in shaping foreign policy. Yet President Trump’s remarks during his recent visit to Saudi Arabia and praise for leaders with deeply problematic human rights records, such as Egyptian President Abdel Fattah al-Sisi, caution otherwise.

Specifically regarding China, in March 2016 the Obama administration joined eleven other countries in issuing a rare statement expressing “concern[ ] about China’s deteriorating human rights record” and calling on China “to uphold its laws and its international commitments.” The United States was noticeably absent a year later when eleven countries—including Canada, Australia, and the United Kingdom—sent a letter to the Chinese government expressing “growing concern over recent claims of torture and other cruel, inhuman or degrading treatment or punishment in cases concerning detained human rights lawyers and other human rights defenders.”

The Trump administration is admittedly not breaking the mold: U.S. government policy towards China has always been, at least to some degree, pragmatic. President Jimmy Carter entered office with human rights as a cornerstone of his foreign policy. Nonetheless, even he recognized the United States’ many interests when dealing with China and normalized relations. President George H. W. Bush suspended military contracts and technology exchanges with China following the Tiananmen Square massacre. President Bill Clinton, however, restored China’s most favored nation trading status four years later and quickly relaxed rhetoric that China must make significant progress towards conforming with international human rights standards.

While the tension between principles and pragmatism is not new in U.S. policy towards China, the current dismissive attitude towards human rights is jarring. The past four months indicate that policy decisions based on immediate economic and security calculations will prevail over long-held human rights values. As I have argued elsewhere, this is a mistake. Addressing human rights in both a principled and pragmatic way requires not just stating that human rights matter in the abstract but also articulating an integrated, executive-branch-wide plan for how human rights will be raised in various contexts.

Read the entire article here.

Justin Shen. 司法周刊. A Study on Citizen Participation in Criminal Trials in European Commission Countries.

Visiting Scholar (2016-2017) Judge Justin Shen from Taiwan published an article in the Judicial Journal (司法周刊), where he examines the institution of citizen participating in criminal procedures in multiple European Commission countries and how that impacts criminal procedure regarding evidence rules, discovery, adjudication and appeals. Read the article here (Chinese language only). 

Aaron Halegua Quoted in BuzzFeed Article, "The People's Burger?"

McDonald's teaming up with a Chinese state-owned giant will have super-sized consequences for local business, consumers, and workers, activists say.

April 13, 2017

A major Chinese state-owned conglomerate is now on track to become the world's largest McDonald's franchise owner, leaving local competitors at risk of being edged out of the fast-growing market by a state-backed competitor.

Earlier this year, China’s state-owned CITIC Group agreed to buy a majority stake in McDonald’s franchising rights in the country for the next two decades. Should the $2 billion plus sale be approved, the company will take control of more than 1,700 McDonald’s restaurants, with a stated goal of opening another 1,500 in the next five years — setting it up to become the company’s biggest franchise owner, ahead of Brazil’s Arcos Dorados.

It could also put competitors — both domestic franchises and international brands — in a tough spot.

This will be the first time a state-owned company has taken a majority stake in a major player in the fast-food space, according to R.J. Hottovy, a consumer equity analyst for Morningstar who focuses on McDonald’s and KFC-owner Yum Brands. Although a Chinese sovereign wealth fund and a state-owned bank have invested in a financial backer of Yum China, their control and influence is negligible, he said.

“Put it this way,” he said. “There isn’t a state-owned body exerting any pressure on Yum China.”

Some fear this level of state backing for a foreign brand like McDonald’s will be bad for Chinese fast food companies, consumers, and workers. A maverick Chinese business consultant and an American union are each trying rally support for a Chinese government investigation into the effects of the deal on competition in the market, similar to scrutiny of foreign companies such as Apple and Coca-Cola in recent years. Each wants authorities to impose new terms on McDonald’s and to protect the rights of its competitors, such as the domestic franchise Dico's.

With state backing, “McDonald’s can expand rapidly, which may harm your business,” wrote a leader of the US-based Service Employees International Union in a letter to fast food operators in China this week. “You have an opportunity to express your concerns regarding the transaction as MOFCOM [the Chinese commerce ministry] considers an appropriate review of the competitive impacts of the deal.”

The SEIU’s meddling in the China deal is part of it’s multi-front pressure campaign against McDonald’s, including the flagship Fight For $15 campaign to raise wages back in the U.S. Scott Courtney, the SEIU executive who sent this week’s letter, has played a key role in the global campaign, building cases against McDonald’s in courts around the world, targeting anti-competitive practiceslabor violations and tax fraud.

In China, the union’s work is happening alongside efforts by Li Su, a businessman whose Beijing-based consulting firm has lobbied on behalf of domestic Chinese companies against foreign competitors, with tactics including calls for antitrust investigations. His consultancy has successfully pushed regulators to block Coca-Cola from acquiring a local company and required Apple to pay to use the iPad trademark in China.

Read the complete article here.

Erin Murphy. New York Times. Sessions Is Wrong to Take Science Out of Forensic Science

On April 11, 2017 NYU Law Professor and USALI Affiliated Scholar Erin Murphy published a piece in the New York Times about DNA forensics and the importance of science within the criminal justice system. Below is an excerpt from the article, with a link to the full-length article below.

 

Prosecutors applauded the April 10 announcement by Attorney General Jeff Sessions that the Department of Justice was disbanding the nonpartisan National Commission on Forensic Science and returning forensic science to law enforcement control. In the same statement, Mr. Sessions suspended the department’s review of closed cases for inaccurate or unsupported statements by forensic analysts, which regularly occur in fields as diverse as firearm and handwriting identification, and hair, fiber, shoe, bite mark and tire tread matching, and even fingerprinting analysis.

If all you knew about forensic science was what you saw on television, you might shrug off this news, believing that only the most sophisticated and well-researched scientific evidence is used to solve and prove crimes. But reality is different.

D.N.A.-exoneration cases have exposed deep flaws in the criminal justice system’s use of forensic science. Reforms have not come easy, but slow and plodding progress has been made. In 2005, the F.B.I. said that it would no longer conduct bullet-lead examinations after a review panel found matches essentially meaningless. A blue-ribbon panel of the National Academy of Sciences raised the same concern in a 2009 report that found nearly every familiar staple of forensic science scientifically unsound.

Prompted in part by that report, the Justice Department initiated a review of thousands of cases involving microscopic matching of hair samples. In 2015, the F.B.I. announced its shocking initial findings: In 96 percent of cases, analysts gave erroneous testimony. At a meeting last spring of the commission that Mr. Sessions just disbanded, the department said it would expand the view to include a wider array of forensic disciplines.

With the announcement by Mr. Sessions, this momentum comes to a screeching halt. Although forensic science would seem a low priority for an incoming attorney general, it is not altogether surprising that it was in Mr. Sessions’s sights. As a senator (and former prosecutor), Mr. Sessions made forensic science a priority. He sponsored and shepherded to passage the Paul Coverdell National Forensic Science Improvement Act of 2000, which remains the signature federal funding mechanism for state all-purpose forensic labs. That might suggest that Mr. Sessions would care about the integrity of forensic science, but his enthusiasm has been for more — not better — forensic evidence. When the National Academy of Sciences’ scathing report was released, Senator Sessions simply waved it away, remarking, “I don’t think we should suggest that those proven scientific principles that we’ve been using for decades are somehow uncertain” — ignoring the panel of experts who had concluded just that.

Continue reading here: https://www.nytimes.com/2017/04/11/opinion/sessions-is-wrong-to-take-science-out-of-forensic-science.html

USALI Affiliated Scholar Eva Pils Quoted in Washington Post Article

A broken lawyer and a hawkish judge cast deep pall over China’s legal system

January 2017

Read the entire article here.

BEIJING — For 500 days, Li Chunfu, once a lively and tough human rights lawyer, was kept in secret detention by China’s Communist Party. When he was finally released on Jan. 12, his wife was so shocked she could hardly believe her eyes.

Her 44-year-old husband was a thin, pale and sick man, Bi Liping said, a fearful and paranoid person who seemed to have been broken by the system.

A Beijing hospital soon gave him a tentative diagnosis of schizophrenia.

Li was one of 300 lawyers and advocates who were rounded up in a crackdown in July 2015. Most were soon released, but two have been sentenced and four remain in detention.

In statements to the China Change website, relatives and fellow lawyers said Li had been severely tortured and drugged during detention.

But his story is not the only one to have cast a shadow over the rule of law in China this month.

In a remarkable speech two days after Li’s release, the chief justice of the country’s Supreme Court told provincial judges to resist “erroneous” Western ideals of judicial independence, constitutional democracy and the separation of powers.

“One needs to have a clear-cut stand and dare to show the sword against them, to struggle against any erroneous words and actions that deny the leadership of the Communist Party, or slander the rule of law and the judicial system of socialism with Chinese characteristics,” Zhou Qiang said.

While the idea that the Communist Party is in firm control of the legal system is hardly new, to see the idea of judicial independence so explicitly condemned by the country’s top judge, a man once seen as a reformer keen on limiting officials’ power over local courts, came as a shock to many people.

Two open letters expressing outrage at Zhou’s remarks are circulating, one signed by 23 lawyers and another signed by 155 leading liberal intellectuals.

“In the past few years, the legal community has been working hard toward establishing an independent judicial system,” said Lin Liguo, a former lawyer based in Shanghai who wrote the lawyers’ letter.

Lin said Zhou’s remarks had burst reformers’ optimism. “What Zhou said is basically that we don’t need judicial independence at all,” he said. “That’s why people are so upset.”

[China’s Communist leaders promise legal reforms — under party authority]

At a key meeting in October 2014, the party’s top leaders promised to give judges more independence from interference by local officials, and President Xi Jinping has often pledged to strengthen the rule of law — while at the same time underlining that the Communist Party remains firmly in control and effectively above the law.

Yet such was the controversy stirred by Zhou’s remarks that the Supreme Court issued five separate social media posts last week, each hundreds of words long, explaining and amplifying his remarks. At first, they attracted hundreds of comments from ordinary people, until censors shut down the comment function.

In a blog post, Jerome Cohen, an expert in Chinese law at New York University School of Law, called it “the most enormous ideological setback for decades of halting, uneven progress toward the creation of a professional, impartial judiciary.”

He said there was “enormous dissatisfaction among many judges at the restrictive, anti-Western legal values being imposed by President Xi Jinping, with many younger officials leaving the courts and procuracy for work in law firms, business and teaching.”

Eva Pils, an expert in transnational law at King’s College London, said Zhou’s speech came as a “real shock” to people in the legal system who had been educated to believe that China was striving for better rule of law and who found it unacceptable that their country was “departing so completely and so rapidly from the reform path.”

It is, in other words, one more nail in the coffin of the idea that China’s legal and political system would ultimately move in a more liberal direction, experts said.

“I think that lots of people are still in denial about this departure from the reform path, and the turn to rule by fear, and that they are unwilling to consider the full implications of the new rhetoric,” Pils said.

Experts said Zhou may have come under pressure to publicly declare his loyalty to the party, especially as a team from the Communist Party’s anti-corruption arm had been reportedly carrying out an inspection of the Supreme Court since ­mid-November. Ensuring his appointment was renewed at a major party Congress in October may have played a part, they said.

But Zhou’s words still came across as particularly strident, as he insisted on the importance of “ideological work” and recommended judges “severely strike” at people who use the Internet to endanger national security — code for undermining the Communist Party.

He also recommended judges protect the images of leaders, heroes and historical figures, “to resolutely safeguard the glorious history of the Party and the People’s Army.”

Zhou’s warning echoes Xi’s campaign against “historical nihilism” — questioning the Communist Party’s heroic account of its own history. In the past few weeks alone, a Chinese professor and a government official were both sacked, and a TV producer was suspended, for criticizing Mao Zedong, who is officially revered as the founder of modern China even though he presided over the deaths of tens of millions of people in a famine during the Great Leap Forward and unimaginable cruelty during the Cultural Revolution.

The case of the lawyer Li has underlined what happens to people who dare to challenge the party.

Li grew up poor in China’s central Henan province. He dropped out of school at 14 to work in factories but spent six grueling years studying in his spare time to follow in his brother’s footsteps and become a lawyer.

Maya Wang at Human Rights Watch said it was unclear what he was supposed to have done wrong — perhaps demonstrating outside a police bureau in Heilongjiang in 2014 to demand access to his client, perhaps being the brother of Li Heping, a well-known civil rights lawyer who was also detained in July 2015, or perhaps simply being tarred as an agent of a hostile foreign government.

But what broke him is no mystery, she said in a statement, citing how suspects are frequently beaten, hung by their wrists and deprived of sleep, as well as subjected to indefinite isolation and threats to their families.

 

Reichler, Paul S. "The Path to a Just and Lasting Peace in the South China Sea"

THE PATH TO A JUST AND LASTING PEACE IN THE SOUTH CHINA SEA

Paul S. Reichler

November 10, 2016

*Originally presented as part of the 22nd Annual Timothy A. Gelatt Memorial Dialogue on the Rule of Law in East Asia: "Implications of the Philippine Arbhitration Award: An Informal Roundtable of Experts"

 

1.                 At the time the Philippines decided to institute arbitration proceedings against China under the UN Convention on the Law of the Sea, it faced a daunting challenge.

2.                 First, China was insisting on exclusive jurisdiction over nearly all the waters and seabed of the South China Sea, within a so-called nine-dash line, and the exclusive right to all the natural resources within that line. China’s claim extended more than 650 M from its coast, and within 50 M of the Philippines’ coast, that is, well beyond the 200 M exclusive economic zone and continental shelf to which China is entitled under the Law of the Sea Convention, and well within the Philippines’ 200 M entitlements.

3.                 Second, Chinese naval and law enforcement vessels prevented Philippine fishermen from fishing in the waters encompassed by the nine-dash line, and prevented Philippine licensees from exploring for oil and gas within the perimeter of the nine-dash line, while permitting Chinese nationals to carry out these activities.

4.                 Third, China claimed sovereignty over all of the Spratly Islands, which consist of dozens of tiny insular features, only a small number of which are above water at high tide, and which were also claimed by the Philippines, Vietnam and Malaysia. China occupied and built, or started to build, military facilities on top of seven of these features. One of them, Mischief Reef, was a low tide elevation only 120 M off the Philippines’ coast, and well within its exclusive economic zone and continental shelf.

5.                 Fourth, the Chinese construction activity had destroyed, and in some cases obliterated, coral reefs, previously some of the most pristine in the world, which caused devastating and irreparable harm to the surrounding marine environment, including important fish breeding and feeding areas.

6.                 Fifth, China forcibly excluded Filipino fishermen from Scarborough Shoal, a series of rocks jutting above the water around 100 M off the Philippine coast that is a fertile fishing area where Filipino, as well as Chinese, fishermen had exercised their livelihood for centuries. After June 2012, only Chinese nationals were allowed by China to fish at the shoal.

7.                  The Philippines had tried to address all of these issues with China by diplomacy. But China was inflexible. It demanded that the Philippines accept China’s exclusive rights over all of the resources of the sea and seabed within the nine-dash line, as well as Chinese sovereignty over all of the islands and other maritime features in the South China Sea. This would have amounted to a renunciation of the Philippines’ rights under the Law of the Sea Convention. Negotiations took place at various intervals over several years, always following the same script. No progress toward an agreement was, or could be, made under China’s conditions. With diplomacy frustrated, and military action out of the question, legal recourse appeared to be the only viable option for the Philippines, but this, too, posed serious challenges.

8.                 The difficulty facing the Philippines was how to frame a case under the Law of the Sea Convention that would accomplish two critical objectives: (1) meet the jurisdictional requirements of Part XV of the Law of the Sea Convention; and (2) obtain meaningful relief for the Philippines. There were certain obstacles to jurisdiction looming over the case. First, a tribunal established under the Convention has no jurisdiction over questions of land sovereignty. Thus, the Philippines could not challenge China’s assertion of sovereignty over the Spratly Islands or Scarborough Shoal, which represented one of the main sources of conflict. Second, the Philippines could not ask a tribunal to delimit a maritime boundary with China, because China had exercised its right under Article 298 of the Convention to exclude itself from compulsory arbitral jurisdiction in regard to sea boundary delimitation.

9.                 The solution, after much thought, analysis and debate, was to bring a case about maritime entitlements, rather than about sovereignty over islands or delimitation of boundaries. Maritime entitlements – that is, the entitlements to the sea and seabed generated by coastal land territory, including a 12 M territorial sea, and 200 M exclusive economic zone and continental shelf – are specifically provided for in the Convention, and thus, unlike sovereignty over coasts and islands, fall within the jurisdiction of a tribunal established pursuant to Part XV. Also – and this proved to be a critical point–  entitlements can be determined without the need for engaging in the delimitation of boundaries. In fact, law of the sea tribunals must determine the entitlements of the parties to a dispute prior to and separately from delimiting a boundary, because it is only when two States’ entitlements overlap that a boundary needs to be created.

10.            Our legal team was confident that by asserting claims based on entitlements, rather than sovereignty or delimitation, we would overcome China’s anticipated jurisdictional challenges, and this proved correct. Although China did not formally appear in the arbitral proceedings, it submitted to the tribunal a very well-written position paper, which the tribunal construed as a pleading, setting forth its jurisdictional objections. China’s main arguments were that the tribunal lacked jurisdiction over matters of land sovereignty and boundary delimitation. The tribunal had no difficulty in rejecting these arguments, unanimously, because, as it emphasized, the Philippines had taken pains not to raise issues of land sovereignty or boundary delimitation, but had presented its case entirely as one regarding maritime entitlements.

11.            That left us with the question of whether a case about maritime entitlements alone would be enough to justify the Philippines’ recourse to arbitration, insofar as it might produce an Award that provided meaningful relief, in the form of confirmation of the Philippines’ exclusive right to enjoyment of the resources within its 200 M EEZ and continental shelf. In fact, our focus on entitlements was sufficient to accomplish this objective. Upon examination of the 200 M maritime entitlements generated by China’s and the Philippines’ mainland coasts, one can see that there is very little overlap. Except for a small area off the Philippines’ northwest coast, none of the Philippines’ 200 M entitlement is overlapped by the Chinese entitlements extending from China’s mainland coast. The Philippines thus enjoys exclusive entitlements in all of these non-overlapped areas, including the right to all the resources of the sea and seabed.

12.            For that reason, the most important objective of the case, from the Philippines’ perspective, was to establish the unlawfulness of the nine-dash line claim, and limit China’s entitlements to those set forth in the Convention. The Philippines argued that, as a party to the Convention, China enjoyed all of the entitlements set forth therein, but that these did not extend beyond 200 M; therefore, any Chinese claim beyond 200 M, especially one that extended within 200 M of the Philippines, was a violation of the Convention, and of the Philippines’ rights thereunder. This seemed to us an irrefutable point, and the tribunal agreed, unanimously.

13.            In reaching this decision, the tribunal carefully considered China’s claim to the waters and seabed encompassed by the nine-dash line based on so-called “historic rights” beyond those enumerated in the Convention. The tribunal found that China’s claim was unlawful on two grounds. First, after a careful review of the Convention’s text and its voluminous travaux preparatoires, the five arbitrators concluded that when States became parties to the Convention they abandoned all claims to rights in the sea – whether based on history or otherwise – that were contradictory with its provisions, and they were expressly required by the Convention to withdraw such contradictory claims. China’s claims to areas of sea and seabed beyond 200 M from its mainland coast were plainly contradictory to the Convention, and therefore unlawful.

14.            Second, the tribunal found that, even under pre-Convention international law, China’s historic rights claims were invalid. Under customary law, a claim of historic rights may be lawful only if a State has exercised authority over the maritime area in question under a claim of right, continuously over a long period of time, with the acquiescence of neighboring States. China’s historic rights claim in the South China Sea satisfied none of these well-established criteria. China had never exercised authority over any maritime areas beyond those very close to its mainland coast, let alone continuously for a long period of time; and no other State had ever acquiesced to China’s authority in these areas.

15.            China claimed 200 M maritime entitlements not only from its mainland coast, but also from Scarborough Shoal and the Spratly Islands, based on its alleged sovereignty over them. Consequently, an important issue in the case was whether these features were capable of generating maritime entitlements, and, if so, to what extent. This matter turned on the meaning of Article 121 of the Convention.  The Article provides that islands generate the same maritime entitlements as mainland coasts, including an exclusive economic zone and continental shelf. However, there is an exception in paragraph 3 of that Article for islands that are considered uninhabitable, specifically, features that are incapable of sustaining human habitation or economic life on their own. Those islands have an entitlement only to a 12 M territorial sea.

16.            Accordingly, the Philippines argued and presented voluminous cartographic, historical, anthropological and scientific evidence that neither Scarborough Shoal nor any of the Spratly Islands was habitable in its natural state, such that none of these features generated entitlements beyond 12 M. Significantly, this was the first case in which any international court or tribunal was required to interpret Article 121(3) or determine whether, and on what basis, an island should be deemed incapable of sustaining human habitation or economic life. The tribunal, which was composed of five of the most eminent and well-respected jurists and scholars in international law, delivered, as part of its Award, an extensive analysis of the Article’s text, and the manner in which it is to be applied. It came to the conclusion, again unanimous, that none of the islands in question was habitable in its natural state, and that none of them therefore generated entitlements beyond 12 M.

17.            The result was that, except for the area northwest of the Philippines’ coast the entitlements generated by the Philippines and China’s mainland coast overlap slightly, and the 12 M zones of some of the small islands claimed by China, the Philippines’ exclusive economic zone and continental shelf are not overlapped by any entitlements that China could lawfully claim. On this basis, the tribunal ruled that it was unlawful for China to deprive the Philippines of the exclusive enjoyment of these areas of sea and seabed, including the living and non-living resources located there.

18.            In regard to the impact of China’s island-building and other activities on the marine environment, the Tribunal retained its own independent experts to assess the harm caused by these activities. The arbitrators found that the harm caused by China was devastating and irreparable, as the Philippines had claimed.

19.            In regard to fishing at Scarborough Shoal, the Tribunal found, based on the historical evidence, that both Filipino and Chinese fishermen had conducted traditional fishing activities at the Shoal since time immemorial, without interference by governmental authorities. On this basis, the Tribunal concluded that, regardless of which State is sovereign over the Shoal – a matter that was beyond its jurisdiction to decide - the fishermen of both States enjoy traditional rights to engage in the same practices that they have historically exercised. This meant that China could not continue to prevent Filipino fishermen from exercising these rights.

20.            In essence, the Philippines prevailed on all of its central claims. But, as many have asked, what does this mean, if China refuses to comply with the Award?

21.            This is a legitimate question, and one that reaches beyond China and this particular case. Put more broadly, the question might be phrased: what does it mean for the Law of the Sea, and for the rule of law in general, if States – especially Great Powers – refuse to comply with their legally binding obligations under treaties to which they voluntarily became parties, or with their obligations under judicial judgments or arbitral awards rendered by duly constituted and fully competent international courts or arbitral tribunals?

22.            My first observation is that, given the nature of the case, it would be extremely detrimental to the international legal order for China’s defiance of the arbitral Award, if that is what China persists in doing, to be acquiesced in by the international community, and especially by the more than 160 States Parties to the Law of the Sea Convention. China’s actions, especially its insistence on enforcement of its nine-dash line and historical rights claims, have been found to violate the most fundamental principles of the Convention, in derogation of the rights of the Philippines, and by implication, those of the other coastal States along the South China Sea.

23.            This is a very special Convention. It was envisioned by its framers, including China, as a constitution for the world’s oceans and seas, regulating virtually every aspect, from navigation to environmental protection, to boundaries, to maritime zones and rights to resources, to undersea cables, to deep seabed mining, and on and on. It has been one of the most successful treaties in the history of international law. It enjoys near universal acceptance. And it has kept peace and order on the seas, and facilitated the orderly and equitable exploitation of resources, for more than a generation.

24.            China’s policies and actions threaten the viability of the Convention. If China can disregard the Convention, then so can other States. This should be unacceptable to the international community. It should also be unacceptable to China. China itself has much to lose from the unraveling or weakening of the Convention. It has extensive rights under the Convention that it would not want to put in jeopardy. It might one day find these rights threatened by other Great Powers with interests in the South China Sea. The Convention would protect China in those circumstances.

25.            The United Nations Charter gives a special role to certain of the world’s most powerful States, including China. It makes them permanent members of the Security Council, and it gives them veto power over Council resolutions. But it does not exempt them from the rules set forth in the Charter, or any other rules of international law. Nor do United Nations Conventions or other multilateral treaties make exceptions to their rules for the Great Powers.

26.            The same fundamental legal rules and principles, reflected in international agreements like the Law of the Sea Convention or adopted by custom, apply to all States. It could not be otherwise. The majority of States simply would not accept being bound by rules that exempted other States, solely on the basis of their size or power.

27.            They simply would not accept a system in which they are required to comply with the binding orders of competent international tribunals but other States, even Great Powers, are not. The Great Powers set an example, and this can be either good or bad. If they refuse to honor their legal obligations, so will other States, and soon enough international adjudication will be a hollow exercise.  In 2012, when Colombia defiantly told the International Court of Justice that it would not comply with the Court’s Judgment delimiting its maritime boundary with Nicaragua, it cited the United States’ rejection of the Judgment in the landmark case brought by Nicaragua in the 1980s, concerning the United States’ illegal use of force against Nicaragua. China, too, cited the US’s rejection of the Nicaragua Judgment in support of its refusal to accept the arbitral Award in the Philippines case.

28.            Fortunately, these acts of defiance of international courts and tribunals are, at least so far, rare exceptions. The vast majority of States, in the vast majority of cases, comply with judicial judgments and arbitral awards, even in cases where they consider themselves to have lost. The United States, despite the Nicaragua case, has a decent record of compliance with international judgments and awards. So too does China itself, at least in the context of World Trade Organization panel rulings. China has been complying even with those rulings that go against it.

29.            There are reasons why States, on the whole, generally comply even with unfavorable judicial or arbitral outcomes. First, there is an advantage in finally resolving a dispute with another State. Even if the resolution is less than desirable, the alternative – prolongation of the conflict, tension and instability in the bilateral relationship, and the imminent or eventual possibility of armed conflict – is often worse. Second, neighboring States can never move out of the neighborhood. Geographical proximity among States is permanent. Disputes between neighbors are inevitable. If State A doesn’t comply with a judgment or award resolving today’s dispute, how can it expect its neighbor, State B, to comply with one in tomorrow’s dispute? By refusing to comply, State A will have removed judicial or arbitral recourse from the list of possible means of resolving a future dispute that cannot be settled diplomatically. What alternative does that leave it?

30.            Third, there is the value of stature, prestige and reputation, which translates into influence on the international level. States enhance their stature, and with it their influence, when they demonstrate that they are law-abiding, including by complying with international judgments and awards. For this reason, States inevitably seek to justify their actions on the basis of international law. We see this in all kinds of situations, even where the reliance on international law seems misplaced. China itself has argued that its nine-dash line claim is based on international law, namely its alleged “historic rights” to far-removed waters and seabed. For the reasons explained above, the arbitral tribunal dispensed with this argument. But my point here is not that States correctly invoke international law to justify their policies and actions, simply that they do so. And that is because they consider it important to their own self-interest to be seen by their neighbors and the international community as a whole, as law-abiding and respectful of the rights of other States. Why do they care? Because it enhances their stature, and thus their influence.

31.            Finally, I believe that the majority of States understand that the alternative to a rules-based international order is chaos. Respect for the rule of law serves not only ethical and moral interests, including justice and fairness, but practical ones. It fosters predictability, stability, security and peace in international relations. These are goals shared by most States most of the time. In fact, Great Powers may have the greatest interest in preserving the existing international order, and their privileged levels of influence under it. Maintaining and strengthening that order requires them to accept the consequences on those occasions when its rules are applied against them. No Great Power can reasonably expect to win automatically, every time. There will be times, when their behavior is found to be unlawful. But that may present as much of an opportunity for strengthening the legal order as a challenge to it. There might be no better way to promote the rule of law than for a Great Power, like the United States or China, to accept and comply with an adverse judicial judgment or arbitral award. In fact, they do so, at least from time to time, because they understand that there is no viable alternative to a rules-based system that will protect, over the long term, their interests in a more orderly and secure world.

32.            In additional to these systemic considerations, there are particular reasons why China, with the passage of time, the dilution of passions, and the sober-minded reflection of an enlightened leadership, might come to see the Award in the Philippines case as more of an opportunity than a defeat.

33.            First, China may appreciate that its core interests in the South China Sea have not been affected by the Award. China’s claim of sovereignty over all the islands, which it considers vital to its strategic interests, is unaffected by the Award. Accordingly, to comply with the Award, China need not relinquish either its sovereignty claim in general or its control over the small islands or rocks it currently occupies for military and other purposes. The only exception is Mischief Reef, which is not an island, but a low tide elevation, lying well within the Philippines’ EEZ.

34.            Likewise, the Award does not diminish China’s freedom of navigation or overflight, or ability to conduct naval exercises or other military activities in the South China Sea. China itself proclaimed that, even under the nine-dash line claim, it would respect the navigational and overflight freedoms of other States in and over the relevant waters. Under the Award, the Philippines must respect China’s freedom of navigation and overflight within the Philippines’ own EEZ. China’s freedoms of navigation and overflight, including for its naval and air forces, are therefore fully protected.

35.            What have been affected by the Award, principally, are access to resources, and protection of the marine environment. China may no longer lawfully claim for itself exclusive entitlement to the resources within the nine-dash line, but must respect the exclusive economic zones and continental shelves of the Philippines and the other coastal States in the region. China also may no longer destroy environmentally sensitive coral reefs and their ecosystems for the purpose of building and expanding artificial islands. But these should not be difficult pills for China to swallow.

36.            Until now, China and its neighbors along the South China Sea have been engaged in a competition for resources, especially fish and hydrocarbons. China’s claim of exclusive entitlement to these resources based on the nine-dash line was explicitly rejected by all of the other coastal States, even before the arbitral Award. China had to resort to shows of force on various occasions, against vessels and nationals from the Philippines, Indonesia and Vietnam, to enforce its claims. Until now, there seemed to be no solution, and the risks of conflict were growing.

37.            The Award provides an equitable basis for a solution of this conflict. To be sure, it reinforces the positions of the Philippines, Indonesia, Vietnam and Malaysia, among others, on the unlawfulness of China’s nine-dash line claim, and encourages them to continue to assert their rights as against China within their own 200 M exclusive economic zones and continental shelves. But, at the same time, the Award provides a path for China to negotiate its way out of a dangerous impasse of its own making, and avoid a prolonged and destabilizing conflict, not only with the Philippines, but with Vietnam, Indonesia and Malaysia, as well. This certainly raises the stakes for China to ultimately find an accommodation with four of its largest Southeast Asian neighbors, all of which have rejected China’s claims and are unlikely ever to acquiesce in them.

 

38.            On some of the disputed issues, like protecting the marine environment, China and its neighbors would appear to have common interests. On others, compromise should be possible. Unlike sovereignty, resources, whether fish or hydrocarbons, are more easily divisible. By recognizing that its neighbors, too, have rights, as set forth in the Convention and reaffirmed in the arbitral Award, China would be able to free itself to negotiate equitable sharing arrangements in regard to fish catches, and oil and gas development. China can become an indispensable partner to its neighbors in these activities. It is the only coastal State along the South China Sea with the financial and technological capacity to facilitate exploitation of hydrocarbons without participation from western or other extra-regional players. Good faith negotiations, based on respect for the legal rights of all of the coastal States, could produce a settlement favorable to every one of them.

39.            For these reasons, I believe the Award offers China, as well as the Philippines and the other coastal States along the South China Sea, the best path toward a secure, just and lasting arrangement for the peaceful and equitable enjoyment of the Sea and its resources; and this is why I believe there is reason to hope that China, in its wisdom, will come to this same conclusion, and find an honorable way to reach a reasonable accommodation with its neighboring States based on its recognition of their, and China’s own, fundamental rights under the Law of the Sea Convention, as spelled out in the Arbitral Award.

40.            Such an agreement, in my view, would serve the interests of China, the Philippines, the other coastal States in the region, and the international community as a whole. This is clearly within the realm of possibility. It requires, mainly, for China to come to the enlightened conclusion that its long term interests, like those of most other States, are best served by respecting, promoting and strengthening the rule of law, and accepting the legal rights of its neighboring States, in return for their acceptance of its own rights, as well as its partnership in the sustainable and equitable enjoyment of the South China Sea and its resources.

 

Aaron Halegua Publishes New Report on Chinese Workers

In the past decade, China has made considerable progress in legislating new legal protections for workers, expanding their access to arbitration and courts, and paying for more lawyers to represent them. Nonetheless, in China, as elsewhere, labor violations persist and a substantial “representation gap” remains between legal needs and services.
 

Read More

Eva Pils. Jane Henderson. King's Law Journal. "BREXIT and International Relations: The Impact of Brexit on Relations with Russia and China."

In autumn 2016 Affiliated Professor Eva Pils co-published the artile considering the likely impact of Brexit on relations between the United Kingdom, China, and Russia.

INTRODUCTION

This paper considers the likely impact of Brexit on the relations between the United Kingdom and two significant states on the world stage: Russia, which is physically the largest, and heir to one of the Cold War superpowers, and China, which is the most populous, and which some think may be the next superpower. In discussing this impact, we also address how Brexit affects the EU’s relationship with Russia and China.

This question can be conveniently considered from three different (though interacting) perspectives. First, what impact will the change in Britain’s EU status have on individual Russian/Chinese or UK citizens wishing to travel to, invest in or trade with the other state? Secondly, what change is likely between Russia/China and Britain on a state-to-state level? Finally, both the UK and Russia/China belong to some important international organisations; will Britain leaving the EU impact on its place in these other organisations in relation to Russia or China?
 

A. Russia

England (and later, the UK) and Russia have a long history of interaction, sometimes as friend, sometimes as foe. Tsar Ivan Grozny (Ivan the Terrible) would have liked to have married Queen Elizabeth I (or failing that, one of her maids in waiting) but was refused. The first Russian Emperor, Peter the Great, stayed in London from January to April 1698. As during his preceding visit to the Netherlands, he worked in the dockyards to learn about shipbuilding. (He also had some notoriously drunken parties.) This led to a sadly brief period of unprecedentedly warm relations between Britain and Russia. During the following century, Jeremy Bentham’s works were of interest to Prince Potemkin, one of the lovers of Empress Catherine II (Catherine the Great). In early nineteenth and mid-twentieth centuries respectively the desires of Napoleon Bonaparte and Adolf Hitler to expand their empires put Russia on the same side as Britain; in the 1850s during the Crimean War they opposed one another as part of the then ‘Great Game’ waged between the British, French, Ottoman and Russian empires. Lenin also spent time in London

B. China

Historically the most important thing about Sino-British relations is these relations’ principal origin in colonialism. British historians usually note (not always without gloating about China’s subsequent surrender to British power and influence) that when George III’s emissary arrived in China in 1793 to request that the British be allowed to establish more extensive trade relations on their own terms, his gifts were graciously accepted, but the request rejected with the message,

As your Ambassador can see for himself, we possess all things. I set no value on objects strange or ingenious, and have no use for your country’s manufactures. This then is my answer to your request to appoint a representative at my Court, a request contrary to our dynastic usage, which would only result in inconvenience to yourself … 22 Emperor Qianlong, letter to George III, 1793, available in translation at <http://acc6.its.brooklyn.cuny.edu/~phalsall/texts/qianlong.html>.View all notes

Chinese historians will of course comment on the ‘unequal treaties’ that, inter alia, ceded Hong Kong and, later, its New Territories to Britain, and the memory of the humiliation33 The term conventionally used is ‘national humiliation’ (guochi).View all notes and wreckage colonialism brought to China is symbolised, to many people's minds, by the ruins of wanton ‘punitive’ destruction that can still be seen in Yuanming Park in north-west Beijing.44 Sheila Melvin, ‘The Ruins of Yuanmingyuan’ (ChinaFile, 4 May 2012) <www.chinafile.com/reporting-opinion/caixin-media/ruins-yuanmingyuan>.View all notes

When the UK, in October 2015, received the General Secretary of the Chinese Communist Party (CCP) and President of the People's Republic of China (PRC) Xi Jinping with extraordinary pomp—taking him to Buckingham Palace in a golden carriage and repeatedly using the phrase ‘golden relationship’ to predict a glorious shared future of exchange and partnership55 Shi Zhiqin and Lai Suetyi, ‘Xi's Visit to Kick Off a Golden Age of China-UK Relations’ The Diplomat (15 October 2015) <http://thediplomat.com/2015/10/xis-visit-to-kick-off-a-golden-age-of-china-uk-relations/>.View all notes—some saw in this a poignant reversal of fortunes. But there were many concerns about China's numerous rule of law challenges, at a time when the UK, like other European countries, seemed to have its own, different, struggles with adhering to and endorsing human rights standards.

A few months later, Brexit seemed likely to add to anxieties and concerns about what is already a complex and challenging relationship,66 Tom Phillips, ‘China, Britain and Brexit: Vote to Leave EU Robs “Golden Relationship” of Its Lustre’ The Guardian (London, 30 June 2016) <www.theguardian.com/politics/2016/jun/30/china-britain-and-brexit-vote-to-leave-eu-robs-golden-relationship-of-its-lustre>.View all notes even though in terms of immediate consequences for individuals (see section II.B) there is little that can be predicted with any confidence at this point. China's influence on and in a Britain that is no longer part of the EU is set to generate legal and political challenges.

For the complete article please click here.

Jerome A. Cohen and Yu-Jie Chen: Beijing and Taipei Should End Their Tug of War Over Repatriation of Criminal Suspects

Over Taiwan’s protests, China has since April persuaded several countries that do not have official diplomatic relations with Taiwan – including Kenya, Malaysia and Cambodia – to send Taiwanese nationals suspected of telecommunications fraud to China rather than Taiwan for prosecution. 

Read More

Jerome A. Cohen. The Wisdom of The Hague’s South China Sea Decision. Wall Street Journal

The July 12 arbitration award in the Philippines case against China under the United Nations Convention on the Law of the Sea (Unclos) isn’t only significant for East Asia and maritime law. It will also have implications for public international law and the peaceful settlement of international disputes generally.

Read More