Margaret K. Lewis. The Diplomat. "Taiwan’s Human Rights Revolution and China’s Devolution"

October 3, 2017


Taiwan’s Human Rights Revolution and China’s Devolution

The gulf between legal systems across the Taiwan Strait is far wider than a hundred miles. Last month, Lee Ming-che — a Taiwanese citizen and human-rights activist — pleaded guilty to subversion charges in China for peacefully expressing political opinions. Today he remains in custody awaiting a decision on his punishment. Lee’s case has heightened already strained cross-strait relations. It has also laid bare the increasing divergence between China and Taiwan with respect to protecting human rights.

In three decades, Taiwan has transformed from martial law to a flourishing democracy embracing international human rights norms. China simultaneously has not only remained under strict one-party rule but also seen a shrinking space for civil society and a crackdown on lawyers who advocate for their clients’ rights. In Lee’s case, he was denied representation of his choosing. His court-appointed lawyer spent less than five minutes questioning his client and failed to present any favorable evidence. Lee’s defense consisted of a well-rehearsed statement of how he had been misled by Taiwan’s media and had only learned the truth about China from watching television programs while held in criminal detention.

Admittedly, a more zealous defense would have been futile: the conviction rate in China is over 99 percent even in non-politically-charged cases. And, given Beijing’s sweeping view of what constitutes subverting state power, it encompasses activities within the fundamental right to freely seek, receive, and impart information about human rights. Lee’s web-broadcasted confession was a carefully orchestrated spectacle, not a meaningful legal proceeding.

The farce of a trial has implications domestically in China, across the Taiwan Strait, and internationally. First, within China, Lee’s case underscores the intolerance for views that are not in lockstep with the Chinese Communist Party. Criminalization of dissent is, of course, not new: Lee joins scores of PRC citizens whose exercise of fundamental human rights has been construed as criminal behavior, including the late Nobel Laureate Liu Xiaobo who was similarly convicted of subversion. Liu was convicted eight years ago, and heightened repression is particularly common in the lead up to the five-year party congress that will be held later this month. But Lee’s case is further indication of ratcheted-up repression. The scale and ferocity of the ongoing crackdown forebodes that Xi Jinping will continue to squelch dissent as he embarks on his second five-year term as PRC president and party general secretary. Criminalizing political debate is integral to the party’s long-term strategy of maintaining its lock on power.

Second, the Chinese idiom of “killing the chicken to scare the monkey” (杀鸡儆猴) indicates punishing an individual as an example to others. Here, China has struck down Lee with a crime that carries up to a life sentence in order to send a warning to other Taiwanese who travel across the strait.

For the hundreds of thousands of Taiwanese citizens residing in China at any time, Lee’s case is a cautionary tale regarding strict avoidance of political expression. If any of those citizens are detained, Lee’s case demonstrates that China, unlike Taiwan, is refusing to honor the 2009 cross-strait agreement on mutual judicial assistance. The agreement requires one side to give prompt notification when detaining persons from the other side and to provide facilitation for visits by family members — neither of which has been done during Lee’s months of incommunicado detention. Lee’s wife was allowed to view the trial, but China has denied all requests to actually visit her husband.

For Taiwanese who are not physically present in China but maintain contacts there, Lee’s case is a warning of the perils of visiting if their communications have addressed democracy, human rights, or other topics deemed threatening by Beijing. Most recently, the PRC government warned of negative consequences for engaging in “separatism” following pro-independence remarks by new Taiwanese Premier Lai Ching-te. The crime of separatism can carry a life sentence under PRC law.

Third, Lee’s case highlights the contrast between Taiwan’s and China’s international engagement with human rights norms. In 2009, then Taiwan President Ma Ying-jeou signed the International Covenant on Civil and Political Rights (ICCPR). Taiwan could not actually become a party to the covenant due to its unusual international status, but the legislature incorporated the contents into domestic law. Taiwan has since engaged in periodic review procedures by international experts that mimic those state parties undergo.

Meanwhile, China’s relentless criminalization of peaceful political expression evinces that its signature on the ICCPR is meaningless. It has been nineteen years since China signed the ICCPR, which provides that “[e]veryone shall have the right to freedom of expression.” As a signatory that has expressed its intent to ratify the covenant, China has an obligation to refrain in good faith from acts that would defeat its purpose. Yet China has repeatedly done just that. It is high time for China either to shift course and ratify the ICCPR or to remove the veneer of compliance and declare its intention not to be bound by this foundational human rights document. At least then the PRC government would be forthright to the world in its repudiation of civil and political rights instead of tacitly subverting international human rights norms in the process of accusing others of subversion.

Margaret K. Lewis is a Professor of Law at Seton Hall University and a Fulbright Senior Scholar at National Taiwan University College of Law. She tweets at @MargaretKLewis.

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Eva Pils. CPIA. "A New Torture in China"

A new torture in China


Written by Eva Pils.

‘In China, we say that for a person meditating in a cave, a day passes as though it were a thousand years; it is like paradise. And where did I experience paradise? In there in the detention centre, being tortured. A day was like a thousand years. That’s how it felt. The disturbingly aged and altered face of the human rights lawyer sharing this observation gave me a sense of what he had been through during his most recent detention, and what colleagues who remained ‘in there,’ including Jiang Tianyong and Wang Quanzhang, might still be suffering.

Like my interlocutor, they are victims of the latest attack on this tiny and embattled section of the Chinese legal profession.  The ‘709 Crackdown’—so called after the date it began, on the night of 7 July 2015 when Lawyers Wang Yu, Bao Longjun and their child were detained—has been the largest so far and now affects hundreds of lawyers. Lawyer Wang Yu in her testimony published on 12 July and other lawyers including Xie Yang have disclosed some details about their experience of detention and forced disappearance,  coercive interrogation and torture, and informal house arrests.

During some recent chats about their experience of the ‘criminal justice’ system as suspects, defendants, and defence lawyers in the 709 Crackdown, my interlocutors mentioned details that sounded grimly familiar. For years, we had been hearing about the en-suite guest room in changing locations where a captive would be held, effectively disappeared, for days, weeks, or months on end; the two guards never leaving the room, the blinds always down and glaring ceiling light never turned off; the stress positions; the handcuffs; the beatings; the food deprivation, and the numerous sophisticated additional methods to humiliate, torment and terrorise (such as telling Wang Yu that she had been forgotten by the outside world.)

Some of the manoeuvres to cut inmates off from support were also part of longstanding practices. For example, the authorities have claimed in numerous cases that lawyers chosen by the detainees or their family members had been ‘dismissed’ and replaced by lawyers chosen by the authorities. Using techniques of and ‘dividing and disintegrating.’  they foster distrust and fear in the interminable enforced ‘chats’ with target persons in the wider rights defender community. As part of ‘relational repression’, they try to recruit family and colleagues for ‘thought work ’ purposes. For example, we saw video-recorded statements by loved ones pleading with prisoners to give in, such as the parents of Lawyers Li Chunfu and Li Heping, obtained by means of false representations.

But the 709 crackdowns featured several new, troubling measures. Early on, there were startling public displays of political prisoners incriminating themselves, renouncing rights advocacy, and denouncing former colleagues, including at televised trials. These displays were accompanied by propaganda videos, portraying them as enemies of their country and as dangerous criminals. The sham trials and self-renunciations raised the very anxious question what had been done to 709 crackdown victims to make them collaborate in these displays.

Now, based on conversations with victims, their supporters and relatives, China Human Rights Lawyers Concern Group reports that at least six of the victims have been forced to take medication.  They were allegedly given pills ‘prescribed’ for a variety of supposed medical conditions, but the ‘patients’ were not allowed to see their diagnoses. In some cases, the authorities never even bothered to claim that the drugs were prescribed by qualified doctors.

This has been the most deeply unsettling thing I have ever heard Chinese torture survivors describe. That the ‘medication’ had some physiological effects is unsurprising, but hardly captures the damage done.  As an interlocutor explained, it made them ‘extremely exhausted’ and it made their heartbeat uneven. Others have described muscle pain and blurred vision  as a result of the ‘medication.’ But physical effects were by far not the worst.

‘It made you think you were finished this time. Mentally, it was [the scariest], because you couldn’t know [what you’d been given] and so you thought, for sure they want to kill you. You won’t get out of here alive. It was only in there that I understood what torture was. Whatever we’d been imagining before got nowhere near what it was like.’

Indeed, one of the lawyers ‘released’ in January 2017 had come back from over 500 days of incommunicado detention with signs of serious mental illnessearlier this year, and his friends attribute this to his being forcibly drugged.

There is a serious debate as to whether the forced treatment of mentally ill prisoners is legally and ethically defensible. There is also increasing concern about abuses in health-care settings, and some argue that any kind of involuntary psychiatric treatment amounts to torture.

But in the present case, these difficult questions do not arise. If the allegations that have been made are true, the authorities claimed to be ‘treating’ physical conditions that were, in fact, non-existent, not mental health issues that might have existed. In all cases, we know about, ‘treatment’ had been preceded or accompanied by the more routine torture methods mentioned earlier. At least in one case, the ‘treatment’ initially ‘offered’ to a prisoner from day one of their detention was ‘to strengthen your immune system.’ Considering the mortal fear it produced, it is hard to resist the conclusion that this ‘treatment’ itself was another form of torture, systematically inflicted on human rights defenders. It was done by a method that strips torture down to its worst part – the taking away of one’s personality, one’s inner being, through an attack on one’s physical integrity.

This leaves us to worry about the victims of the 709 Crackdown still detained. As for Jiang Tianyong, the authorities have claimed that he has appointed two lawyers, but refused to disclose these lawyers’ names. His earlier self-incriminating statement on Chinese television confirmed no more than that he was alive. Nothing was heard or seen of Wang Quanzhang for over two years until, at the end of last month, another lawyer claimed to be acting on his behalf and to have met him, without being able to show that Wand had appointed him, or disclosing any further details. Why are Jiang and Wang both denied independent counsel? And, why has Wang not been paraded on television, like most of the others? Is it because he has been able to hold out under torture so far, or because his torture or ‘treatment’ got somehow out of hand?

We also need to ask ourselves what the novel practices displayed in the 709 crackdown tell us about the Xi-era Party-State approach to criminal justice. For a long time, many observers believed that there were ‘dual’ systems, one for ‘ordinary’ and one for ‘sensitive’ cases and that gradually the problems in sensitive cases would be overcome as the system overall become fairer and more open. The Chinese authorities supported this belief, by generally claiming that the legal process complied with the liberal standards of international law, and by doing their worst in great secrecy. As my interlocutors pointed out, judicial persecution in the post-Mao, post-June Fourth system remained reactive and covert; sometimes denying any knowledge of the very people it was disappearing and torturing.

Not anymore. Through the use of mechanisms like ‘residential surveillance in a designated location,’ the new model purports to legalise longstanding measures of repression. The forcible medication of political prisoners held in this way shows a system stooping to new lows.  Displaying them as ‘repentant’ culprits on TV, the authorities do not seem to mind if we can see what their victims have gone through. Perhaps we are even meant to guess, to become habituated to what we see, so we gradually begin to accept these horrors as part of what is discussed more widely as the Xi-era ‘new normal.’ Feng Chongyi has called thisa ‘National Security Commission model’ replacing the former ‘stability maintenance model.’ One of my interlocutors even more pointedly called it a ‘war model.’

Yet it remains difficult to see how the Chinese Party-State could win a war on Chinese civil society, or against the legal principles, it has embraced through much of its own law.  The system is easily able to lock up and torture more and more critics. But its ‘war’ so far is largely being waged against people who refuse to be cast as the enemies this system needs to justify its oppressive existence, and whose experience illustrates how shamefully the system violates the values they defend.

Eva Pils is Reader in Transnational Law at King’s College London. Image credit: CC by Russell Neches/Flickr.

Margaret K. Lewis. China Policy Institute: Analysis. "Penetrating Law Into the Walls of Chinese Detention Centers."

Read the original article here.

July 18, 2017

Written by Margaret Lewis.

Last Saturday, the window closed for comments on the draft PRC Detention Center Law.  The Ministry of Public Security touts the draft law’s ability to protect human rights (人权保障), and the release of the long-awaited draft at least indicates the government’s acknowledgement that existing legal provisions are inadequate. Yet any celebrations about an improvement to current detention practices is premature.

This post briefly explains why detention centres are a focal point of concern and will introduce the draft law. It then urges a sceptical wait-and-see attitude both because other recent criminal justice reforms on paper have fallen short of expectations and because the draft law retains the fundamental power structure that emboldens the police.

Concerns for Human Rights Protections in Detention Centers

In February 2016, the United Nations Committee against Torture reported that the PRC has failed to implement robustly the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee seriously questioned China’s claim that it is making “enormous efforts” to stop torture: “[T]he practice of torture and ill-treatment is still deeply entrenched in the [PRC] criminal justice system . . .” (para. 20). The Committee’s report largely reiterated existing concerns rather than breaking new ground, but it was noteworthy for being a scathing rebuke from an international body.

The PRC submitted its follow-up response to the report in January 2017. The response contended that “China has always attached great importance to strengthening the protection of the right of detainees to see a lawyer and to notify family member” and that “[d]uring inquiries into allegations of torture by the public security police, [procuratorates] are able to ensure the independence of the investigation.” The release of the draft Detention Center Law followed on the heels of this rebuke of the UN committee’s findings.

Release of the Draft PRC Detention Centre Law

PRC Criminal Law already criminalises the extraction of confessions via torture (art. 247) and physical abuse of detainees (art. 248). Nonetheless, there have long been calls for a law focused on detention centres because of the vulnerability of detainees to abuse. A string of detainee deaths under questionable circumstances had heightened concerns, with the 2009 death of a detainee that the police ascribed to playing the children’s game “elude the cat” (躲猫猫) as one of the most egregious examples.

The draft law emphasizes that people held at detention centers are “suspects” (rather than previously terminology that indicated they were “criminals” despite not yet being convicted of any crime) and has a number of provisionsaddressing access to counsel, medical care, a streamlined bail application process, and other areas of critical concern.  The draft law also continues the trend towards recording interrogations by providing that interrogations in connection with serious crimes shall be recorded. Videotaping is, however, not a panacea. There are serious questions about what happens to detainees during the time they are not being videotaped as well as the extent to which detainees’ lawyers have access to the tapes and other evidence.

One concrete changes that would improve the draft law is a revision of Article 46, which currently provides that, for most crimes, meetings with lawyers must be allowed within 48 hours of the filing of a request. This is too long. Much can happen within 48 hours. This is especially true when viewed in light of the lack of the right to silence in PRC law. An important step towards protecting the rights of the accused would be to provide a clear right to silence combined with a requirement that, if requested by the suspect, all interrogations must cease until a lawyer is present.

Hold the Applause: Why a Sceptical Wait-and-See Attitude is Warranted

Although the government has not released feedback submitted by the public, Chinese lawyers have expressed wariness over the draft law’s potential impact with one highly critical letter signed by over a hundred people. This scepticism is well founded.

Recent experience with criminal justice reforms urges restrained enthusiasm about the law’s potential impact. For example, China’s introduction of an exclusionary rule for illegally obtained evidence provides a cautionary tale. Rules introduced in 2010 were incorporated into the 2012 revision of the Criminal Procedure Law yet still have had little impact, though China is, of course, a large country with differing reports coming from lawyers in various localities.

New rules issued in June 2017 supplementing previous restrictions on the use of coerced confessions are unlikely to give the existing rules more bite because they maintain a narrow view of what type of evidence should be excluded and also continue to allow subsequent non-coerced confessions after an initial coerced one. For the draft PRC Detention Center Law, will implementation similarly fail to live up to the hype? Will, for example, proposed changes to bail application procedures measurably increase the number of suspects released on bail?

More concerning than discrete wording of legal provisions, the draft law does not change the fundamental power structure: the police are still in firm control of detention centres. This fits the overall power dynamic in the criminal justice system where the police are by far the strongest component of the “iron triangle” of police, prosecutors, and judges. The draft law is unlikely to alter what Professor Chen Ruihua has called the “hidden rules” (潜规则) of China’s criminal justice system (translation here), including that the vast majority of cases are only solved after obtaining a confession of guilt and that, if it were not for intention restrictions on the rights of defense lawyers and extralegal detention measures, solving criminal cases would be extremely difficult for most investigative authorities.

The draft law provides that the procuratorate will have an oversight role (art. 8), but simply writing this in the law does not mean that the procuratorate will seriously scrutinise police practices. The procuratorate needs to be both strong enough to challenge the police and also incentivized to stand up to the police: the draft law does not establish either of these preconditions. Experience from other countries teaches us that robust independent oversight is needed if a country is serious about stopping police abuse behind closed doors. Without greater transparency and meaningful outside scrutiny, we simply do not know what is occurring once a suspect is in police custody.

China’s next periodic report on its implementation of the Convention against Torture is due in December 2019. This could provide an opportunity for the international community to examine closely whether—assuming the draft law is adopted as expected—practices at detention centres are indeed changing. The obstacles faced by a UN human rights envoy during a visit to China this spring, however, do not bode well that outside observers will have meaningful access to detention centres and former detainees. Until there is a marked improvement in transparency, we will be unable to say confidently that law has indeed penetrated the walls of detention centres.

Margaret K. Lewis, Professor of Law, Seton Hall University.

Image Credit: CC by Can Pac Swire/Flickr

Jerome A. Cohen. Peter Dutton. SCMP. "How India border stand-off gives China a chance to burnish its global image."


Jerome A. Cohen and Peter A. Dutton call on Beijing and New Delhi to seek impartial arbitration to resolve their problem. After its heavy-handedness in the South China Sea, the latest row offers China a fresh chance to show respect for international law.

Friday, 21 July, 2017

For the past month, there has been a tense stand-off between China and India in the tri-border Himalayan region that ­includes Bhutan. Troubles began when China resumed building a road on the Doklam Plateau, which is disputed between Bhutan and China. India, because of its own security interests and as Bhutan’s security guarantor, stepped in to defend the position of the kingdom. China now claims India has invaded “its” territory. Tensions are high, and more than a few commentators have suggested this may be the most serious Sino-Indian ­border crisis since their 1962 war.

Many possibilities have been advanced for ­Beijing’s motive to stir up trouble. Some suggest ­Beijing seeks to peel Bhutan from India’s orbit. ­Others believe China seeks to take tactically useful high ground from which to threaten a narrow pass connecting to India’s eastern territories. Others focus on domestic Chinese political-military motivations ahead of the 19th Communist Party Congress. Another possibility is that China may be using the tension to create leverage in advance of border ­dispute negotiations. But why provoke India now?

It is important to remember that President Xi ­Jinping (習近平) undoubtedly wants to demonstrate to the upcoming party congress that he has a plan to make his bold foreign policy undertaking, the “Belt and Road Initiative”, a success. The long-term problem Xi faces is that both the maritime “Road” and the overland “Belt” are vulnerable to Indian interference. Thus, the future of the initiative relies heavily on Indian cooperation, or at least non-interference.

What does China have to offer India in return for its important acquiescence? Perhaps Xi created serious border tensions in order to bring India to the negotiating table, where China could offer a settled land border on terms favourable – but not too favourable – to Indian security. There is precedence in China’s negotiating approach with Vietnam ahead of finalising their land border in 2009. Indeed, unlike its thousands of miles of disputed maritime borders with eight other states, Beijing has in fact successfully negotiated nearly all its land border disputes, sometimes explicitly invoking relevant international law. Stark exceptions are China’s still-disputed borders with India and Bhutan.

Yet, almost seven decades of experience suggests that prospects for successful Sino-Indian border negotiations are not bright, and the current military confrontation might lead to actual armed conflict between two nuclear powers.

To avoid such a dangerous development, both Beijing and New Delhi should consider the time ripe for impartial arbitration or adjudication to resolve the problem. This would be a much less dangerous way than military provocations to achieve the “peaceful dispute resolution” that Beijing so vociferously endorses. Moreover, resorting to an independent international tribunal would go a long way towards repairing the damage to Beijing’s reputation caused by its refusal to accept the outcome of the UN Convention on the Law of the Sea arbitration brought against it by the Philippines over disputes in the South China Sea.

As of now, Beijing is vulnerable to criticism that its heavy-handedness in the Himalayas is another example of Xi’s “peaceful” policies. On the one hand, he professes to favour peaceful settlement through negotiations; on the other, he says, “China will never compromise on matters of sovereignty” over what are, in fact, controversial territorial claims. Beijing’s bullying in the South China Sea has also led ­others to conclude it believes only in power-based approaches to international dispute resolution.

When Prime Minister Narendra Modi visited the Council on Foreign Relations in New York in September 2015, he was asked whether India and China might settle their land border disagreements through arbitration. Modi dismissed the possibility without stating any reasons. But since India recently settled its disputes with Bangladesh in the Bay of Bengal through the UN convention arbitration, we are left to infer that the problem is China, not India. Apparently, Modi understandably has no hope that China would agree to such an approach.

Indeed, it is a fair question to ask, especially in view of Beijing’s recent flat-out rejection of the decision in the South China Sea case, why should India seek arbitration with Beijing? Even knowing Beijing will reject the arbitration proposal, India may want to strengthen the global esteem it already enjoys from its gracious acceptance of the adverse Bay of Bengal arbitration award. Seeking arbitration would also ­reflect India’s confidence in its legal position and its rejection of China’s current preference for bullying.

Appearances to the contrary notwithstanding, the Philippines gained much through its arbitration against China. It may take years or even decades for the fruit of its efforts to ripen, but even now it is apparent that quiet bilateral negotiations stimulated by the arbitration have gradually begun to emerge. And it is important to note that through arbitration, even ­“losers” can be winners.

When India was awarded the lesser portion of maritime rights in the Bay of Bengal, Modi’s enlightened acceptance emphasised that now the two sides could cooperate in regional resource development that had been previously stymied.

Beijing has a lot of work to do to repair its international image. What do other members of the UN sea convention think about China’s blatant rejection of its commitment to the agreement’s mandatory dispute resolution provisions? What do the British think about Beijing’s recent unilateral declaration that the 1984 Joint Declaration supposedly guaranteeing Hong Kong’s future until 2047 no longer has realistic meaning? What do other states that have ratified the UN Convention against Torture think about China’s continuing nationwide abuses? What do Australians think about the way Rio Tinto’s Stern Hu was tried despite the bilateral consular convention? What do Taiwanese think about Beijing’s refusal to apply the cross-strait judicial assistance agreement to Taiwan human rights activist Lee Ming-che’s detention? What do forcibly repatriated North Koreans think of Beijing’s violations of the Refugee Convention?

The present dispute with India offers Beijing a splendid chance to demonstrate respect for the institutions and processes of international law.

Jerome A. Cohen is an NYU law professor, faculty director of its U.S.-Asia Law Institute and adjunct senior fellow at the Council on Foreign Relations. Peter A. Dutton is a professor and director of the China Maritime Studies Institute at the US Naval War College and adjunct professor of law at NYU

This article appeared in the South China Morning Post print edition as: move moUntains

*Click here to view original article.


Jerome A. Cohen. South China Morning Post. Taiwan's Landmark Ruling on Same-Sex Marriage Highlights the Gulf with Mainland China.


May 29, 2017 


The decision of Taiwan’s constitutional court last week, invalidating a civil code provision prohibiting same-sex marriage, will have profound implications. Domestically, it will spur the executive and legislative branches to break the political stalemate over the legislative action necessary to amend the code, so as to conform to the constitution’s guarantee of social equality for all. They must now fulfil this constitutional responsibility within two years.

The constitutional court has taken similar actions in other controversial situations in recent decades. For example, its decisions played a critical role in ending the power that Taiwan’s police long exercised outside the regular judicial system, to imprison anyone they chose to declare a “hooligan”. The court also required that the government end an abuse similar to the notorious “re-education through labour” recently abolished, at least in form, in mainland China.

The much more controversial same-sex decision reminds me of the landmark US Supreme Court Brown vs Board of Education ruling, which in 1954 led a divided America away from segregated schools and other previously legal segregation practices. Although Brown, like last week’s Taiwan case, generated a major backlash from many conservative groups, it proved a major step toward social progress.

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Jerome A. Cohen. ChinaFile. Comments on Lee Ming-che's Arrest.

April 20, 2017

A Taiwanese Man’s Detention in Guangdong Threatens a Key Pillar of Cross-Straits Relations

Taiwanese human rights activist Lee Ming-che mysteriously disappeared in China on March 19. Ten days later, Beijing, having ignored the Taiwan government’s frantic appeals for information through prescribed channels, finally admitted that Lee has been placed in official custody on suspicion of “endangering state security.”

Yet, even today, a month later, virtually nothing more is known about Lee’s situation. Where is he being detained and by whom? What evidence justifies his detention? Does he have a right to meet his family, see a lawyer, and consult a Taiwan official? How long can he be held until charged with an offense or released? Can he get a fair trial? Why did Beijing not promptly notify Taipei of Lee’s detention, as required by their Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement, a compact in force since it was concluded in 2009? Why has Beijing gone to great lengths to avoid cooperating with Taipei?

Lee was “disappeared” while entering Mainland China from Macau. A former worker for Taiwan President Tsai Ing-wen’s Democratic Progressive Party (DPP) and more recently an administrator at a Taipei community college, he has been a long-term volunteer for Taiwanese human rights NGOs. He often discussed human rights, democracy, and Taiwan’s experience on Chinese social media, called for support for the families of detained Chinese human rights activists, sent Taiwanese books on history, literature, and social sciences to Chinese friends, and traveled to the mainland every year to see them.


Taiwanese human rights activist Lee Ming-che mysteriously disappeared in China on March 19. Ten days later, Beijing, having ignored the Taiwan government’s frantic appeals for information through prescribed channels, finally admitted that Lee has been placed in official custody on suspicion of “endangering state security.” Yet, even today, a month later, virtually nothing more is known about Lee’s situation. Where is he being detained and by whom? What evidence justifies his detention? Does he have a right to meet his family, see a lawyer, and consult a Taiwan official? How long can he be held until charged with an offense or released? Can he get a fair trial? Why did Beijing not promptly notify Taipei of Lee’s detention, as required by their Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement, a compact in force since it was concluded in 2009? Why has Beijing gone to great lengths to avoid cooperating with Taipei? Lee was “disappeared” while entering Mainland China from Macau. A former worker for Taiwan President Tsai Ing-wen’s Democratic Progressive Party (DPP) and more recently an administrator at a Taipei community college, he has been a long-term volunteer for Taiwanese human rights NGOs. He often discussed human rights, democracy, and Taiwan’s experience on Chinese social media, called for support for the families of detained Chinese human rights activists, sent Taiwanese books on history, literature, and social sciences to Chinese friends, and traveled to the mainland every year to see them.

Read the entire article here.

Jerome A. Cohen. Storm Media Group. 孔傑榮專文:北京錯估逮捕李明哲的後果

June 06, 2017





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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.

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.

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

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. 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:

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"


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.