Alvin Y.H. Cheung. ChinaFile. Who's to Blame for Hong Kong's Weakening Rule of Law?

January 23, 2018

Rimsky Yuen, Hong Kong’s third Secretary for Justice, stepped down in early January. He leaves his department, and the city’s reputation for rule of law, markedly worse than they were when he took office in July 2012.

According to the Department of Justice’s website, the Secretary for Justice’s role is to act as “guardian of the public interest in a wider sense.” Yet Yuen’s tenure has been marked by attempts to wield the law against political opponents, a refusal to defend the courts from unfair and racially-charged criticism or Beijing’s attempts to strip them of their power, and a steady attack on the foundations of Hong Kong’s constitutional order. Far from fulfilling his constitutional duty to speak up for the rule of law in Hong Kong, he has been a willing collaborator in Beijing’s sustained campaign to undermine it.

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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.

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.

 

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.

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加强中美领事条约人权保障

本文出处:8月5日中国时报

孔杰荣 (柯恩)

下个月将是中美两国签订领事条约三十周年。这三十年来,随著中美关系日益密切,双方人民互访亦趋频繁,《中美领事条约》使两国政府得以保障自己国民旅游居住于对方国家时的权益。尽管这些条约规定只有在问题发生时才受到瞩目,但其实际上保障了来往两地人民的人身安全,对于两国在经济、商业、教育、文化、运动领域的交流合作,功不可没。

但现在该是双方检讨条约实行结果的时候了。两国政府应有充分的档案可供参考。我自己偶尔接触领事争议,在一些美国公民被中国政府羁押的案件中,受他们家人之托担任公益法律顾问。我的经验显示,在美国驻北京大使馆或是国务院工作、经常轮调职务的美国官员,若能更熟悉《中美领事条约》的规定和实务,对他们的工作将有所助益。当然,在针对条约棘手的条款重新谈判之前,美国应先仔细分析条约过去的记录,以及其他国家在领事协定上与中国打交道的经验。

美国国民应会希望他们的政府澄清《中美领事条约》中第三十五条的保障──亦即确保两国政府有权联系、探视在对方领土内的本国国民。就此至少有四个重要的议题需要考虑,均与刑事司法相关。

第一个问题是,在什么样情况下,中国或美国必须通知对方政府,对方国民已遭到拘禁。条约仅仅规定,当遇到对方国民「被逮捕或受到任何形式的拘禁」时,政府当局应通知对方领事馆。然而,在有些涉及「国家秘密」的案件,当美国国民被中国的国家安全部「监视居住」时,安全部有时未及时通知,而此类「监视居住」之强制措施,实际上可以把嫌犯单独关押在安全部特殊的拘禁场所,时间长达六个月。中国官员偶尔会找别扭的理由,说他们不知道「监视居住」的情形也要依条约规定通知对方领事。有鉴于此,《中美领事条约》应该明确规范此种情形,以消除疑虑。

因涉嫌犯罪被中国监禁的外国人,受讯时经常遭胁迫,有时还会被刑讯逼供,通常只有领事的探视才能阻止这些非法行为发生。这就涉及了第二个关键的议题─通知领事以及领事开始探视的时间。就领事探视权,条约的文字相当艰涩:「最迟于主管当局通知领事馆…之日起的两天后,不应拒绝探视」,另外,关于通知对方领事馆的期限,除了异常通讯问题外,条约允许四天的时间。

这意味著,在领事会见、协助聘请律师和翻译前,犯罪嫌疑人可被拘禁长达六天的时间。但即使是这么宽松的时限,中国政府仍然经常违反。直到领事到达前,犯罪嫌疑人必须独自面对企图迅速取得口供的审讯人员。为减少逼供的危险,最好能把通知时限缩到四十八小时,并规定领事可以在接获通知后立刻探视。

第三个重要的议题是,在每月的领事探视中可以讨论什么?条约仅提到领事与自己国民「谈话」的权利。中国的解释很狭隘,当局通常禁止领事讨论案件内容,也没有提出任何正当依据,领事若想讨论案件,在场监视的警察会加以制止。中国这种做法大幅削弱了领事探视的作用,有必要改进。

最后一个重要的问题:当中国不公开庭审时,领事官员是否有权旁听审判?这个问题不仅出现在最近的美国石油地质学家薛锋案,困扰著美国政府,也在前一阵子力拓公司胡士泰案中使澳洲政府伤透脑筋。和中澳领事协定类似,《中美领事条约》允许领事旁听一切涉及自己国家国民的审判,没有例外。此外中国法律也明确表示,只要领事协定允许领事旁听审判,即使是在不公开的庭审,包括国家秘密案件,仍应准许领事旁听。

过去在一些国家秘密的审判中,中国法院也曾允许领事参与,然而近年来却开始禁止,也没说明任何合理根据。如果美国官员把在中国被拘禁的美国国民权益当作第一要务,他们应该抗议中国将领事拒之门外的做法,并说服中国政府明确重申其义务,允许领事旁听。

然而,即使中国同意,美国也许会有其它顾虑,不见得愿意修改条约。根据对等原则,若条约改善领事权利,美国也必须给予中国领事同等的权利。但由于美国对中国间谍和国家安全的顾虑日增,美国执法机关或许不愿意更迅速地通知中国领事。尤其是美国的联邦制使遵守条约规定更加困难。美国恐怕也不想让中国领事与案件敏感的囚犯自由地讨论,或者让中国领事旁听不公开的庭审。两个政府的执法机关也许看法略同。

另一个不利于重新谈判条约的因素在于,《中美领事条约》中的领事权利一旦扩张,其它政府,包括台湾在内,说不定都会要求中国、美国改善现有的关于领事权利的安排。

最后,美国长期忽视《维也纳领事关系公约》,对其他许多国家违反公约义务,做法令人反感,因此美国政府可能也不希望向任何国家提起领事保护这个议题。这对许许多多中国、美国和其他各国人民的权利而言,却是非常不幸的事。

(作者孔杰荣 Jerome A.Cohen,纽约大学法学院亚美法研究所共同主任,外交关系协会兼任资深研究员。英文原文请参 www.usasialaw.org 。亚美法研究所高级研究员陈玉洁译。)

钓鱼台是颗不定时炸弹

出处:2010年11月11日 中国时报

作者:孔杰荣(柯恩) 约翰.范戴克

今年九月份,日本在钓鱼台列屿(日本称尖阁诸島)附近的十二海里领海内逮捕了一名中国渔船船长,此事再度使得两个东亚巨头之间的关系陷入紧张。钓鱼台列屿位于台湾东北方向,地处偏远,由五个小岛和三块寸草不生的岩礁组成,土地面积总共不到七平方公里,已被证实无法维持人类居住。除了能激起民族主义情绪外,它们本身没有多少重要性。但是,由于日本控制了这片群岛,且坚持称这片群岛不仅应当享有领海,同时也享有广大的专属经济区以及相邻大陆架的一部分,這使得群島的主权问题,牽涉到如何在东中国海上公平划界这一重大挑战。

中国对这片群岛的主权主张是基于对无主领土的“发现”,此一“发现”可以追溯到一三七二年,并由数百年来中国政府与该群岛的接触和相关官方文献中推知。日本的主张亦基于“发现”其所谓的无主领土,尽管一系列的日本明治时代官方文件显示(其中数份文件是由台湾学者邵汉仪爬梳寻得),日本政府在一八八五年欲将该群岛编入领土时,已深知中国对该群岛在历史上的权利与主张。往后十年中,明治政府不仅未完成必要的实地调查,以确认群岛是否为无主地,并认知此事“与清国不无关系”且牵涉“与清国之交涉”,这与日本现今的口径完全相反。明治政府当初为避免中国起疑,刻意选择隐瞒其占领群岛的意图,“待他日之机会”再采取行动。那时机在一八九五年一月来临,当时日本即将于“甲午战争”击败中国,日本内阁选择在那时通过决议,宣称群岛为日本领土。但即便是这项内阁决议,也一直等到第二次世界大战后才被公诸于世!

中国坚持,这片群岛不是因为日本单方、秘密的内阁决议而归属日本,而是和台湾以及其他一些没有提到的附属岛屿一道,在一八九五年五月签订的中日《马关条约》中割让给日本。因此,中国主张,这些小岛也应当与台湾和其他附属岛屿一道,在第二次世界大战结束后一并归还给中国,而不是同琉球群岛,一起落入美国政府的临时行政管辖。

日本则指出,群岛在战后被置于美国行政管辖之下,不管是蒋介石的中华民国政府,还是毛泽东的中华人民共和国政府,对此都未提出抗议,尽管中华人民共和国政府确实曾拒绝接受战后所有的和解条约,因为这些条约当时都将它排除在外。

一九六八年,联合国经调查,称这片群岛附近区域可能蕴藏大量石油与天然气。此后,当时相互竞争的两个中国政府,都开始对美国计划在一九七二年将群岛归还于日本管辖表示抗议,尽管美国当时对这片群岛的最终主权归属不持任何立场。如今,由于中华人民共和国已经“崛起”,而这些小岛的法律地位尚未解决,这项悬而未决之领土争议不仅开始阻碍这个地区石油和渔业资源的开发,同时也威胁到和平与安全。

美国最近尝试提出针对此争议“主持”一次讨论,但中日两国无一接受该提议。中国希望美国不要插手任何有关中国的海界问题,并且已经在有关南中国海的讨论中表明这一立场。对于中国来说,美国介入东中国海争端显得更为不宜,因為虽然美国公开表示对领土问题保持中立,但却重申这片群岛目前在日本管辖之下,且受到一九六零年《美日安保条约》的保护,这一点大大激怒了中国。

尽管日本通常重视美国给予的支持,以平衡中国日益壮大的势力,但也不欢迎美国提议介入这场争议,因为日本根本荒唐地否认任何争议的存在。此外,假如美国真要成为一個公正的调解者,它就不得不注意到,日本对这片群岛的主权主张是建立在对十九世纪晚期历史的扭曲之上,这在国际社会中完全立不住脚。

如同中国屡次提及的,一个调解者也会提醒日本,根据《联合国海洋法公约》第一百廿一条第三款的规定、国际法院相关判决以及国际实践,这些渺小、无人居住且不能维持本身经济生活的海中零星土地,不能和真正的“岛屿”一样享有二百海里专属经济区,也不能享有相邻大陆架的资源。

该是日本重新检视其国际海洋法观点的時候了。那些明显不负责任的观点,只会使另外那些本应被认真考虑的观点也丧失可信性。对于国际社会来说,或许最具侮辱性的,是日本主张,构成其最南部“陆地”的一块叫做“冲之鸟岛” (中国称冲鸟礁)的岩礁也享有专属经济区及大陆架,而这个暗礁系,涨潮时露出海面的部分,还没有一个加宽双人床大。

如果日本想要和平解决和中国之间有关东中国海的海界纠纷,它还必须抛弃那毫无说服力的主张,即钓鱼台—尖阁诸岛有权享有专属经济区和大陆架。这样一来,该群岛的所有权就会变得不那么重要,争议也就可以暂时搁置。之后,就东中国海的划界问题,虽然中国主张要控制其广大大陆架的经济资源,日本则拥护在相邻海岸间划分等距离的专属经济区界限这个盛行的原则,但双方可以继续磋商,以求达成妥协。即便是在敲定边界协议的复杂细节之前,他们也可以实施其长期搁置的计划──共同开发争议区域内的石油资源。

为避免在未来就钓鱼台─尖阁诸岛再起冲突,争议双方应当建立一些协调机制,包括开设一条“(领导人)热线”,就像中国向越南建议的那样。尽管中日两国都不热衷于国际裁判,但为将国内民族主义激情导入建设性管道,双方应对其所持法律立场展现足够的自信,不惮将领土主权争议提交国际法院、国际海洋法法庭或是双方同意的仲裁机构。更多的犹疑不定既危险又徒劳。

__________________________________________________________________________

(作者孔杰荣 Jerome A. Cohen,纽约大学法学院亚美法研究所共同主任,纽约外交关系协会兼任资深研究员。作者约翰.范戴克 Jon M. Van Dyke,夏威夷大学Manoa校区威列姆里查森法学院教授,卡尔施密斯鲍尔专家学者。英文原文请参http://usali.org。亚美法研究所研究员韩羽译。)

中国对南中国海的主张

出处:2010年11月25日 中国时报

作者:孔杰荣            约翰·范戴克

中国日益自信的外交政策表现在众多方面,其中最令邻邦及美国头疼的,是其对大片南中国海主张的各种权利。但中华人民共和国从未解释,对这片战略意义重大,矿藏、渔业和其他资源丰富的水域,其具体主张和依据是什么。

在这片广袤海域,海界的确定乃题中之义。但是,争议各国大部分注意力却围绕在两片渺小群岛的主权争夺上,而根据国际法,这些小岛不应对海上划界产生重大影响。“西沙群岛”位于南中国海北部,毗邻中国和越南,两国均长期对其主张主权。“南沙群岛”位于南部,临近越南、马来西亚、菲律宾、印度尼西亚和汶莱,面积比西沙群岛还小,却长期引得中国和上述邻国争相主张权利。

尽管中国过去并未对这两片群岛实行“有效的占领和控制”,但仍基于上世纪与它们的历史联系而主张主权。群岛附近的其他国家也提出相似主张。这些小岛在历史上无人居住,但近半个世纪来,争议国在其中许多小岛派驻了守备部队。直到约一九七零年,中华人民共和国才开始对这些小岛产生浓厚兴趣,那之前,那些潮涨时露出水面的部分,大多被其他国家占领着。一九七四年,中国使用武力,把即将倒台的南越南共和国政府逐出西沙群岛。一九八八年,中国刚开始“占领”南沙群岛一些低潮高地,便把越南社会主义共和国赶出永暑礁。

中国主张的范围,通常被认为是根据蒋介石国民政府一九四七年公布的一张地图,不久后国民党被共产党逐出大陆。这张地图用十一段虚线将领海一直标到南中国海的南部。后来,共产党时代的地图取消了东京湾(中国称“北部湾”)的两段虚线,但另外九段虚线,勾勒出蜿蜒至南中国海南部的舌状轮廓,仍被反复提及。去年,马来西亚和越南联合对该区域中南部的部分大陆架提出主张,中国便在正式抗议文件中附上此图。

看上去,中国对大片南中国海提出“历史”的主张,却从未明确究竟是主张这片水域为内水、领海、专属经济区、延长大陆架,还是此区域所独有的某种状态。中国只公布了西沙群岛享有十二海里领海的笔直基线,但对南沙群岛却未比照办理。

去年,菲律宾对位于南中国海东部一些小岛周边的大陆架地区,向联合国大陆架界限委员会提交了正式主张;马来西亚和越南也罕见地递交了它们对大陆架的联合主张。中国均表示强烈抗议。

今年七月二十三日,美国国务卿希拉里在东南亚国家联盟(“东盟”)区域论坛发表著名讲话,质疑中国广泛却含糊的主权主张,惹得北京愤怒回应,并于八月底宣布已在南中国海海床深处插上国旗,以此作为象征性依据。不久后,中国对日本的激烈施压,要求其释放在东中国海有争议的尖阁诸岛/钓鱼台附近海域逮捕的一名中国渔船船长,这再次令世界注意到,南中国海发生冲突的危险日益增加。

怎样才能改善局势?中国似乎倾向于,与那些有领土和边界争议的国家,进行一对一的一系列双边谈判。这估计会和中越二零零四年的谈判类似,当时两国达成彼此满意的妥协,大致区分了对邻近东京湾的管辖,促成中国首个海界协定。但其他争议国无疑欲以数量增加保障和谈判筹码,更倾向于集体谈判,正如希拉里所形容,“所有争议国家为解决各种领土纠纷,不以胁迫方式,而以合作态度进行的外交过程。

东盟成员和中国于二零零二年签署的《南海各方行为宣言》,尽管被许多人解释为支持集体协议,其实只规定要“根据公认的国际法原则,包括一九八二年的《联合国海洋法公约》,由直接有关的主权国家通过友好磋商和谈判”来解决争端。签署国进一步同意,将“通过各方同意的模式”继续进行磋商和对话。不过,中国和东盟外交官的想象力不该就此枯竭,而应继续寻找一个能够兼顾双边和集体谈判优点的解决方案。

就像在东中国海的问题上一样,各国应当迈出的实质性第一步,即同意,争议群岛主权的争端就南中国海划界来说,并不那么重要。南沙群岛不适宜人类居住,且无法维持自身经济生活,因此根据《联合国海洋法公约》,它们无权享有专属经济区和大陆架。尽管西沙群岛现在可能被视为适于居住,但争议各方若有心达成妥协,应该能以谈判来限制这一状况可能引起的主张。如果所有争议国,能像中国对尖阁诸岛/钓鱼台争议所采态度一样,同意这些极小的岛屿和岩礁不应左右海界划分,就海界问题达成妥协就会容易得多。

依此方法,就可以沿着相邻国家大陆和大块岛屿的土地边缘划定公平边界,承认西沙群岛可纳入划界考量,从而在离中国最近的海域,划出可观的一片海洋给中国。如此,该区域的国家便可一同开发南中国海的各种资源,如二零零二年宣言所言,带来“和平、稳定、经济发展与繁荣”及“航行和飞越自由”。

(作者孔杰荣 Jerome A. Cohen,纽约大学法学院亚美法研究所共同主任,纽约外交关系协会兼任资深研究员。作者约翰.范戴克 Jon M. Van Dyke,夏威夷大学Manoa校区法学院教授,卡尔施密斯鲍尔专家学者。英文原文请参http://usali.org。亚美法研究所研究员韩羽译。)

中美关系的危险地带

出自:2010年12月9日 中国时报

作者:孔杰荣(柯恩)  约翰.范戴克

 中美之间关于在他国专属经济区(经济海域)内可开展何种军事活动,素来争议不断。上周美国和南韩在位于中国与南北韩之间的黄海海域进行的“战争演习”,戏剧般地将这场争议催至沸点。

中国尚未正式划定其专属经济区的界线。和除美国外的大多数国家一样,中国批准了《联合国海洋法公约》,根据该公约,一国的专属经济区自其海岸基线起算,宽度可达二百海里。如果一国与其最近邻国间距离不到四百海里,则相对的两国需要通过磋商来划分海界。

南中国海和东中国海,便存在就上述划界问题进行磋商的迫切需要,这也一直是国际的关注焦点。然而,美韩上周举行的美其名曰的“联合军事演习”表明,相邻沿海国如无法就黄海的划界达成一致,亦会引发危险局面。这些演习再度使这个问题浮出水面:在他国专属经济区内,究竟何种军事活动是被允许的?

一个沿海国在其专属经济区内,对于所有生物和非生物资源拥有绝对控制权,并有权对其他国家在该海域的海洋科学研究活动进行限制。但是美国主张,他国的船只及飞行器—不论用作军事还是商业用途—在这些海域均享有航行权和飞越权,这一主张似乎也可在《联合国海洋法公约》的文本和磋商过程记录中寻得依据。

《联合国海洋法公约》生效十六年来,中国频频表态,不会干预他国在其专属经济区内及公海上的航行权。中国用语言和行动表明,中国允许商用船穿越其专属经济区。一小部分公约缔约国宣称,该公约允许沿海国限制其专属经济区内的军事活动,中国虽不是它们中一员,近年来却不时拥护这种主张。在零一年和零九年,中国两次对美国在其专属经济区内的军事活动发难,均酿成中美间的危险对峙;不仅如此,中国还抗议美国船只在这些水域开展水文测量活动。

二零零一年,一架未武装的、由螺旋桨带动的美国海军EP-3侦察机,在中国专属经济区空域沿中国海岸线飞行时,与一架中国派出盯梢的中国战斗机发生碰撞。中方飞机坠毁,飞行员罹难。美国极力主张,其飞机有权飞越中国专属经济区而不受阻挠,因此中国的盯梢行为违反了国际法。中国也毫不示弱,回应称美国的侦察飞行违反了中国对其专属经济区的权利,因为这并非单纯的飞越,而显然是企图从中国沿海地区和军事设施截取消息。

去年的冲突事件则涉及美国的另一种侦测行为。美国监测船“无瑕号”装备了先进的声呐系统,在中国海南岛潜艇基地以南七十五英里的方位,监测中国潜艇位置。三艘中国政府的船只和两艘渔船企图干扰“无瑕号”的声呐设备。尽管“无瑕号”最终避免了重创,但是这次冲突进一步突显了中国在专属经济区航行自由问题上的观点。

美国一贯主张,专属经济区内及公海上的侦测活动是合法正当的。虽然中国拒绝接受这一观点,但据报道,中国自己也长期在日本和越南附近的海域,悄悄进行着类似的活动。

美国还试图对世界各大洋的海床进行勘测,从而使其潜艇在航行中不至撞上障碍物,而勘测范围也包含了上述专属经济区。在美国看来,这类活动对于航行是必要的,因此为《联合国海洋法公约》所允许。包括中国在内的一些国家,则将此种行为视作“海洋科学研究”,是需得到沿海国允许,方可在其专属经济区内进行的。零二年十二月,中国通过一项法律,规定在其专属经济区内进行地图绘制和测量活动,都必须得到其政府的许可。

美国政府的专家强调,美国未阻止俄罗斯和其他国家在其专属经济区内进行军事活动,而仅仅是进行监视。但仍有不少国家主张,沿海国在其专属经济区内,至少有权禁止某些类型的军事活动。这一问题依然充满争议,而美国未能批准《联合国海洋法公约》一事,也使美国很难利用该公约的微妙措辞,为其主张的观点提供依据。

随着中国海军和空军的扩张,以及中国对其专属经济区延伸出的毗邻大陆架资源的进一步主张,美国在中国附近海域进行军事活动所引发的冲突,很可能会加剧。随着中国日益迈向海军强国,美国一直试图说服中国,保护军事船的航行自由,是符合中国自身利益的。虽然中国还没有接受美国这种观点,但中国自己却在其邻国附近海域进行军事活动。迄今为止,中国仿佛摆出这样一个姿态:“照我说的做,而不是跟着我做。”

一九七八年,邓小平建议,将中国与日本之间棘手的岛屿/海界争端问题留给“更具智慧的下一代”去解决。在过去的三十多年中,中国在主要的海洋法问题上,一直遵从着这一建议。现在,邓所说的接班人,也该是时候证明自己确实更具智慧;证明的最好办法,便是在事态失控之前,就这些危险的议题达成共识。

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(作者孔杰荣 Jerome A. Cohen,纽约大学法学院亚美法研究所共同主任,纽约外交关系协会兼任资深研究员。作者约翰.范戴克 Jon M. Van Dyke,夏威夷大学Manoa校区威列姆里查森法学院教授,卡尔施密斯鲍尔专家学者。本系列文章请参http://usali.org。亚美法研究所研究员韩羽译。)

对海外国民的保护── 从“钓鱼台/尖阁诸”争端说起

本文出处:2010年9月30日,中国时报

孔杰荣(柯恩)

当一个国家的政府,认为外国政府不法拘禁其国民时,它能做些什么呢? 本月,中日两国之间爆发的争端可谓剑拔弩张,焦点想当然都集中于领土纠纷,即两国对同一片无人居住之列岛──钓鱼台群岛,在日本又称尖阁诸岛──主张互不相容的主权。不过,中国所采取的,用以帮助被拘禁的中国渔船船长脱离日本刑事侦查的方式,无疑是一些国家正在研究的,因为这些国家与中国或其他国家之间,也存在类似问题。

例如,从这个事件中,美国政府能不能够学到,如何更有效地保护其在中国受到指控的国民?美国公民薛锋目前在中国受到的指控,已困扰美国官员很长时间,中国这次的成功,是否至少应当促使美国考虑使用其他一些可能的方式来帮助薛?薛先生是华裔美国人,在芝加哥大学获得地质学博士学位,后投身商界。他因帮助其美国雇主购买中国石油资源的商业数据库,已被拘禁将近三年。中国对薛的侦查和审判违反了中国《刑事诉讼法》、《中美领事条约》和其他国际标准的相关规定。今年七月,在长期延宕的程序后,薛被以“为境外刺探情报”和“非法提供国家秘密”定罪,并被判处八年有期徒刑。他的案件目前正在上诉阶段,但依旧是迷雾重重。

在来自薛的家人和大学同事、媒体、人权批评家以及其前任雇主的压力下,美国为薛所做的,比起一般国家为保护其国民免受外国刑事司法制度伤害的通常作法都还要多。薛的名字出现在每一个美国试图要求中国释放的在押犯名单上,也经常在外交互访的场合中被提起。领事条约允许领事官员每月探访薛,为了显示此案举足轻重,美国不是派一般领事官员探视,而是由驻华大使或其副手,亲自前往探视,并与薛在规定允许的范围内进行有限交流。奥巴马总统本人,也在去年十一月与中国主席胡锦涛的会谈中,特别讨论了这个案件。上周,美国助理国务卿波斯纳也在联合国,向来自中国的代表提出了这个案件。

除此之外,美国还应当做些什么呢?由于列岛事件涉及重大领土纠纷,因此中国不仅动用了经济、政治和外交等各方面的制裁,还拘押四名日本人,用意明显,同时也威胁会进一步采取反制措施,迫使日本遣返渔船船长,使得日本颜面扫地。诚然,这次的胜利也并非没有代价,除引发对中国“和平崛起”的怀疑之外,与中国有领土纠纷的众多邻邦也因此愈发忧心。

期待美国照搬中国的方式,是不现实且不适宜的。但是,要使中国领导人关注薛所遭受的不公待遇,以及该案对中美关系的不利影响,即便不采取恐吓的方式,美国也可以做得更多。国务卿希拉里,甚至是总统,早就应该借一次新闻发布会或演讲的机会,公开表达对此案的关切。国会的重要成员,以及美国商业界具有影响力的代表,都应当为此岸大声疾呼,尤其对于后者来说,早就该认识到事关其自身利益。

超常规的做法也会被证明有用吗?一九六七年,时值印尼对中国国民的迫害达至顶峰,而中国正经历文化大革命的浩劫,被摧残得奄奄一息。时任已故外交部长陈毅,温文儒雅,通过诗词和其他较为传统的方式,来表达对违反国际法行为的抗议。国务卿希拉里是不是也应当为薛赋诗一首呢?无疑,薛及其妻子、孩子所经受的苦难,在戏剧当中是不乏素材的。中国官方新闻机构新华社,可以不费吹灰之力就将案件演化为一个家庭“折磨”的故事,更何况,和被日本拘押的中国船长不同,薛确实受到过来自审讯人员的,肉体和精神上的双重刑讯折磨。

抑或许,希拉里应当说服其夫克林顿来帮助解救薛?毕竟,他在去年曾解救两名在北朝鲜被定罪关押的美国记者。当然,鉴于另外一位美国前总统卡特,上月成功地从北朝鲜解救了第三个所谓的美国罪犯,或许这次他可以在北京试试运气,尽管美国国务院不见得喜欢他擅自行动。但毕竟,三十二年前,是卡特完成了中美建交这一具有挑战性的任务。

今年夏天,发生在美俄之间的令人震惊的“间谍交换”,启发了一种不同的可能性。虽然中国并未声称,薛为受雇的石油资讯公司收集信息,是在为美国方面从事间谍活动,但是,在不就薛的定罪合法性作出让步的情况下,美国也许能够利用针对他的有关“国家秘密”的指控,来安排一次交换,交换对象则为因替中国从事间谍活动,而近期在美国法庭被定罪的华裔人士中的一个或数个。

中国领导人是时候认识到,这个案件不仅将薛置于不公正的苦难当中,还有损中美关系。要确保作出让步以换得薛的获释,美国无须要求中国,就给薛造成的伤害进行道歉或赔偿。毕竟,这不是一个主权争议,而是有关如何公正行使主权的问题。

(作者孔杰荣 Jerome A. Cohen,纽约大学法学院亚美法研究所共同主任,纽约外交关系协会兼任资深研究员。作者担任薛锋家人的公益法律顾问。英文原文请参http://usali.org/?p=4262。亚美法研究所研究员韩羽译。)

Jerome A. Cohen. Why the elections in Taiwan matter so much – for Beijing, the region and the US. SCMP (South China Morning Post)

The anticipated turnout for Saturday’s presidential and legislative elections in Taiwan will be relatively modest compared with its great importance in so many respects. A major question, of course, is whether – if the Democratic Progressive Party’s candidate Tsai Ing-wen wins – her administration can manage a smooth transition to the next stage of Taiwan’s relations with mainland China

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