Annex VII Arbitration, Annex V Mandatory Conciliation, and China’s Nine-Dashed Line

There are nine states that have coastline along the South China Sea: the People’s Republic of China, the Philippines, Malaysia, Brunei, Indonesia, Singapore, Thailand, Cambodia, and Vietnam. There have been ongoing disputes for decades between those nations concerning their competing claims of sovereignty and jurisdiction over the South China Sea, as well as the islands and reef features it contains, and most of those disputes have involved China.

The reason for China’s leading role in these disputes can be fairly understood from a review of China’s infamous Nine-Dotted Line. This map, a version of which was submitted by China to the UN in 2009, is China’s depiction of what a fair and equitable division of jurisdiction over the South China Sea should look like:

China alleges that the extent of its claims of sovereignty over the South China Sea are based solely on its historically established territories and its lawful jurisdictional entitlements under UNCLOS and international law. The fact that these historical and legal claims provide China with self-proclaimed sovereignty over 80% of the South China Sea is, one assumes, merely a coincidence.

China’s coastal neighbors have, understandably, objected to China’s overreaching in its territorial claims under the Nine-Dotted Line, and it has been a frequent point of diplomatic contention in recent decades. Previously, however, none of the disputes concerning the South China Sea territorial claims have been successfully adjudicated by an international tribunal.

That streak may now be coming to an end. On January 22, 2013, the Philippines — perhaps finally realizing it has little to lose from taking legal action over China’s encroachments on their territories, and potentially a lot of diplomatic street cred to be gained — the Philippines filed a Statement of Claim instituting arbitration against China under Annex VII of UNCLOS,

“with respect to the dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea, the Government of the Philippines has the honor to submit the attached Notification under Article 287 and Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the Statement of Claim on which the Notification is based, in order to initiate arbitral proceedings to clearly establish the sovereign rights and jurisdiction of the Philippines over its maritime entitlements in the West Philippine Sea.”

China was less than impressed with the Philippines’ notice of arbitration, and promptly returned the claim to the Philippines, stating that it declined to participate in the arbitration. In refusing to participate in the mandatory and binding arbitration procedure, China is taking a gamble. Not participating in the arbitration will greatly increase the odds of the arbitration tribunal rendering an unfavorable result. China is still hoping, however, that its usual rhetoric will prevail, and that the Philippines will stand down from the legal proceedings:

“The Chinese side hopes that the Philippine side keeps its word, not to take any action that magnifies and complicates the issue, responds positively to China’s proposals on establishing a bilateral regular consultation mechanism on maritime issues, resumes the operation of the Confidence Building Measures Mechanism (CBMs) as established between the two countries, and reverts to the right track of settling the disputes through bilateral negotiations.”

The reason for China’s refusal to play ball is obvious: China’s claims are devoid of any support under any customary international law or treaty. The longer China can go without having the unlawfulness of its claims officially decreed, the better China’s chances are at having its non-lawful claims take on the color of lawful action by dint of longstanding practice. As such, China has zero interest in allowing any tribunal, binding or unbinding, to render a legal decision concerning the validity of its maritime territorial claims.

China can, and has, found a way to somewhat legally assert its indefensible claims without facing legal challenge, through bullying any states that object into agreeing to submit the dispute to diplomatic negotiations rather than legal recourses. Article 280 of UNCLOS provides that “Nothing in this Part impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice.” As long as China can convince (or coerce) its maritime neighbors to agree to never-ending rounds of “bilateral negotiations” and “consensus building,” then the actual lawfulness of its claims will never be tested.

But in bilateral negotiations (conveniently, China always insists on bilateral, not multilateral), the strength of each party’s bargaining position is dependent on the weight of its political resources, not the weight of its legal arguments. This is precisely what the territorial divisions and corresponding dispute resolution procedures of UNCLOS were designed to avoid. UNCLOS’s provisions reflect a core goal of the parties in entering into the Convention, which was divorcing maritime sovereignty from maritime strength. Under UNCLOS, all coastal states, no matter the size of their GDP or their military, are, theoretically, entitled to the same breadth of their territorial seas and Exclusive Economic Zones (EEZ). UNCLOS was designed this way, in part, to prevent larger and more developed states from going on a maritime territory claiming rampage, done solely for the purpose of establishing a historical claim to occupation and use, with the goal of fully exploiting these territories at a future date. In short, there is no “use it or lose it” clause, under UNCLOS — developing states are not at a risk of losing the natural resources in their EEZ through inaction, and so do not need to divert resources towards shoring up their claims of sovereignty. The resources are theirs, and will be their waiting once a state’s economy develops to the point where it is able to harness and use those resources for itself.

China, in contrast, has subscribed to the exact opposite philosophy when it comes to maritime claims. China’s actions are consistent with its belief that, by virtue of its size and military power, it can claim any part of the ocean that is not actually within another state’s territorial seas. China often uses the language of law in asserting its maritime claims, but China’s actions indicate that it believes its claims are, in actuality, supported by the force of its military and not by the force of law.

In filing its Statement of Claim, the Philippines is now hoping to force China into either conforming its actions with its legal claims, or else be plainly shown to be a hypocrite who is not acting within the bounds of international law. It is not as if that would come as a surprise to anyone, but in terms of drumming up global support and united opposition against China’s maritime aggression, it could go a long way in the Philippines’ favor.

But whether or not the Philippines can lawfully bring its claims before an international tribunal is not a straightforward matter. True, Part XC of UNCLOS does provide for mandatory dispute resolution procedures, either through ITLOS, Annex VII arbitrations, the ICJ, or some other adjudicative body. But under Article 298, of UNCLOS, a limited exception is provided, and “a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more… categories of disputes.” China did in fact file a written declaration, dated August 25, 2006, which invoked the opt-out clause of Article 298, providing that “[t]he Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.”

Of the three categories of disputes in Article 298, it is the category described at 298(1)(a)(i) that is likely most relevant here: “disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations[.]” Although the Philippines attempted to artfully draft its Statement of Claim to avoid implicating any of the disputes within Article 298′s categories, it is likely that at least some — though not all — of the Philippines’ claims would in fact encroach on the interpretation or application of articles 15, 74, and 83.

But this doesn’t mean the Philippines cannot have all of its claims decided by an international tribunal. China’s declaration under Article 298, regarding Section 2 of Part XV, does not affect China’s obligations under Section 1 of Part XV. This means China is still bound by Article 284′s conciliation requirements:

“A State Party which is a party to a dispute concerning the interpretation or application of this Convention may invite the other party or parties to submit the dispute to conciliation in accordance with the procedure under Annex V, section 1, or another conciliation procedure …

If the invitation is not accepted or the parties do not agree upon the procedure, the conciliation proceedings shall be deemed to be terminated.”

So why didn’t the Philippines opt for mandatory conciliation? Likely because conciliation, even when mandatory, is non-binding on the parties, and the Philippines would prefer to get a judicial order in its favor. On the other hand, it is possible conciliation was already tried, and failed. In the Philippines’ Statement of Claim instituting an Annex VII ad hoc arbitration against China, the Philippines stated:

“Most recently, during a series of meetings in Manila in April 2012, the Parties once again exchanged views on these matters without arriving at a negotiated solution. As a result of the failure of negotiations, the Philippines later that month sent China a diplomatic note in which it invited China to agree to bring the dispute before an appropriate adjudicatory body. China declined the invitation.” (emphasis added)

I have not been able to locate a copy of the note, and cannot determine what the “appropriate adjudicatory body” was. It is possible that the Philippines did invite China to conciliation — but presumably, if it had, the Philippines would have specifically noted it. If the Philippines has invited China to conciliation, and China has refused the request, this would strengthen the Philippines’ claims considerably. Because UNCLOS provides for mandatory conciliation for disputes that fall within Article 298(1),

a State may, without prejudice to the obligations arising under section 1, declare … that it does not accept any … of the procedures provided for in section 2… provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2[.]

So even if China has exempted itself from the (immediate) force of Part XV, Section 2, China is still obligated to engage in mandatory conciliation under Annex 5, Article 11:

Any party to a dispute which, in accordance with Part XV, section 3, may be submitted to conciliation under this section, may institute the proceedings by written notification addressed to the other party or parties to the dispute.

Any party to the dispute, notified under paragraph 1, shall be obliged to submit to such proceedings.

If that is what happened here — if the Philippines did give written notification to China that it wanted the parties to engage in conciliation, and China declined — then the Philippines may have some argument that it was entitled to immediately proceed with an Annex VII arbitration, and that China cannot now validly object to the arbitration tribunal’s jurisdiction. This isn’t a watertight argument — the Philippines could have proceeded with mandatory conciliation, per Art. 12 of Annex V, even if China refused to participate — but the “provided that” language of Article 298 could be read to imply that Article 298′s opt-out procedures only apply on the condition that the party accepts submission of those disputes to mandatory conciliation. If China declined to comply with the condition precedent of Article 298′s opt-out provision, then perhaps the Philippines was entitled to proceed under Section 2 of Part XV.

Additionally, the Philippines does have a viable argument that its dispute with China (or at least part of it) is not within the class of disputes that is covered by China’s Art. 298 declaration. Mandatory conciliation might not have been required in this case at all. However, given the ambiguous and unsettled question of whether an Annex VII arbitration could exercise jurisdiction over the dispute submitted by the Philippines, it should be no surprise that the Philippines selected Rüdiger Wolfrum, the former president of ITLOS, as its designated arbitrator. Judge Wolfrum has already gone on the record stating that he believes UNCLOS tribunals have the jurisdiction to hear maritime delimitation disputes that arise in the context of UNCLOS provisions that do not directly concern delimitation, but may indirectly affect it:

there can be no doubt that disputes concerning the interpretation or application of other provisions, that is, those regarding the territorial sea, internal waters, baselines and closing lines, archipelagic baselines, the breadth of maritime zones and islands, are disputes concerning the Convention (see articles 3 to 15, 47, 48, 50, 57, 76 and 121).

Although far from conclusive, it does suggest Judge Wolfrum may be willing to find that a maritime delimitation dispute of the type brought by the Philippines arises under UNCLOS pursuant to articles other than 74 and 83. If so, that would give the Philippines at least one potential vote on the arbitration panel — and a persuasive one, at that — in favor of an Annex VII tribunal finding in favor of its own jurisdiction to adjudicate the Philippines’ claims.

-Susan

China’s Assessment of Human Rights in America

Every year, the United States releases its Country Reports on Human Rights Practices, which assess the human rights records of every other state and almost-state on the planet.

And, every year, the Information Office of the State Council of the People’s Republic of China releases its own report, assessing the human rights record of precisely one country: the United States.

China’s report on the Human Rights Record of the United States in 2010 was just released, and, as always, it gives a funhouse mirror’s eye-view of the U.S.’s record. The report is an unapologetic retaliation against the U.S.’s “malicious design to pursue hegemony under the pretext of human rights”, and contains a hodgepodge of truths, half-truths, and extremely dubious statistics. It also collects approximately every negative statistic about the U.S. that any report has ever found, conveniently compiling them into one rather unshocking exposé. It is also hypocritical, of course, but that is not worth noting — any human rights assessment of another nation is bound to be hypocritical, unless maybe if you’re Sweden or Denmark or somewhere hippy like that. The problem with the Chinese report is therefore not the amount of hypocrisy it contains, but rather the amount of batshit craziness. A few of my favorite passages are as follows:

The census report released on September 16, 2010 showed that working women are paid only 77 cents for every dollar earned by a man.

Shhh, careful there, China. Wouldn’t want the MRAs to hear you make such claims, or they’ll leave lots of nasty comments on your blog.

Every year, one out of every five people is a victim of a crime in the United States. No other nation on earth has a rate that is higher.

You know, I guess it is probably true that no nation on earth is more likely to have a citizen be a victim of crime in the United States than the United States is. That is the only to read those sentences that makes any sort of sense at all.

The number of American people without health insurance increased progressively every year.

China must have missed the news that we’re Socialists, now.

The Atlanta Journal-Constitution reported on November 19, 2010 that a large group of human rights organizations prepared to hold a vigil in South Georgia in support of suspected illegal immigrants being held in a prison in Lumpkin.

Ah, good old Lumpkin County. As goes Lumpkin, so goes the nation.

The ACLU and the U.S. Travel Association have been getting thousands of complaints about airport security measures.

Allowing domestic civil rights groups and private citizens to complain about their government with impunity is definitely a sign of human rights abuses.

A report on The Wall Street Journal on September 7, 2010, said the Department of Homeland Security (DHS) was sued over its policies that allegedly authorize the search and seizure of laptops, cellphones and other electronic devices without a reasonable suspicion of wrongdoing. The policies were claimed to leave no limit on how long the DHS can keep a traveler’ s devices or on the scope of private information that can be searched, copied or detained. There is no provision for judicial approval or supervision.

And the founding fathers’ failure to plug up the border search exception is iron-clad proof that they had zero respect for human liberty.

Minority groups confront discrimination in their employment and occupation. The black people are treated unfairly or excluded in promotion, welfare and employment.

The black people?

The New York Times reported on April 26, 2010 that Wal-Mart was accused of systematically paying women less than men, giving them smaller raises and offering women fewer opportunities for promotion in the biggest employment discrimination case in the nation’s history.

Allowing judicial redress for claims of wrongful discrimination is yet another blatant sign of political oppression.

Bullying is most prevalent in third grade, when almost 25 percent of students reported being bullied two, three or more times a month.

American Third Grade Classrooms: Fourth Member of the Axis of Evil.

Almost 1.8 million [children] are abducted and nearly 600,000 children live in foster care.

That’s right. 1.8 million children are abducted every year, and the U.S. is doing nothing to stop it. Why won’t someone think of the children!

Pornographic content is rampant on the Internet and severely harms American children.

Only by implementing firewalls that censor 90% of the internet can a nation truly protect human rights. And the children.

While advocating Internet freedom, the U.S. in fact imposes fairly strict restriction on cyberspace. On June 24, 2010, the U.S. Senate Committee on Homeland Security and Governmental Affairs approved the Protecting Cyberspace as a National Asset Act, which will give the federal government ‘absolute power’ to shut down the Internet under a declared national emergency… The United States applies double standards on Internet freedom by requesting unrestricted ‘Internet freedom’ in other countries, which becomes an important diplomatic tool for the United States to impose pressure and seek hegemony, and imposing strict restriction within its territory.

Wait, what the hell? Where on earth did China get that idea…

Handing government the power to control the Internet will only be the first step towards a greatly restricted Internet system, whereby individual IDs and government permission would be required to operate a website (Prison Planet.com, June 25, 2010).

Ohhhhh, well that explains a lot.

As a final note, report is also apparently blind to the irony that China’s access to these facts about the U.S. human rights record is only possible due to the U.S.’s liberal stances towards freedom of speech.

However, while the U.S.’s Country Reports on Human Rights Practices is an invaluable resource for monitoring the protections afforded to human rights worldwide, and one that is not currently matched by any other state or NGO, the Country Reports do inevitably and unavoidably leave the United States wide open to charges of hypocrisy and double standards. And that’s fine — there definitely is something hypocritical about highlighting others’ failures where you yourself still have work to do. But the United States has acknowledged and to some extent embraced its critics’ charges:

We do not consider views about our performance voiced by others in the international community to be interference in our internal affairs, nor should other governments regard expressions about their performance as such. Indeed, under the Universal Declaration of Human Rights, it is the right and the responsibility of ‘every individual and every organ of society to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.’

Self-criticism has never been a natural talent of sovereigns, and it is a safe bet that if the U.S. did include a self-assessment of its human rights record, it would have been nothing more than a philosophical puff-piece or abstract celebration of Freedom Yay!! — as was, say, the U.S.’s report of its human rights records, submitted to the UNHRC in November, 2010. So to the extent that there is a void where it comes to examining America’s human rights record, China — and Russia — are not wrong. But the solution is not to call on the U.S. to stop highlighting others’ failures, but to have more even states join in on the fun so that they, too, can call out the human rights abuses of other nations whenever they get the chance.

Like, for instance, the U.S.’s treatment of PFC Manning. I still don’t get how the Chinese report went for over 13 pages, and never once mentioned that.

-Susan

If You’re Planning to Sue China, Make Sure Your Antivirus Software is Up to Date

The big story a couple weeks back was Google’s threats about pulling out of China and the allegations of Chinese cyberattacks against Google and other U.S. corporations. Amidst all that, I missed the story about a series of cyberattacks carried out by China against a U.S. law firm that was representing the plaintiffs in a recently filed suit against the PRC.

Gipson Hoffman & Pancione, the law firm representing Santa Barbara-based software maker CYBERsitter, LLC, in a $2.2 billion software piracy action filed last week against the People’s Republic of China and seven major computer manufacturers in connection with distribution of the controversial Green Dam censorware program, has come under a cyber attack directed from within China. The attack comes on the heels of widespread reports of Chinese cyber attacks against Google. Cyber attacks were initiated from within China against CYBERsitter itself last June when the Green Dam piracy was first reported in the press.

The cyberattacks were in the form of emails disguised to look as though they originated from within the firm, but instead contained Trojans, which could have been used to allow the attackers to gain control of the firm’s machines.

Luckily for Gipson Hoffman & Pancione, apparently the Chinese hackers could not convincingly pull off American Lawyer email-speak, and the messages were written so suspiciously that no one actually opened the Trojans.

Aside from Google and the above law firm, at least thirty other American commercial entities have been subject of Chinese cyberattacks. Or, to use the polite euphemism favored by the State Department, “cyber intrusions.” Cyberattack, you see, could be a dangerous term for diplomats to bandy about — it comes to close to being an accusation that China is committing the most serious breach of international law.

Although starting a war with China is obviously in no one’s best interest, now or most likely ever, I think I would be willing to argue that, under international law, China’s actions (assuming all allegations are true) do constitute a use of force that would authorize the U.S. and other nations who were the subject of attacks to respond in kind. China, of course, is well aware that at this point no nation would as a practical matter retaliate with force, but the Chinese cyberattacks may end up forcing an international law of cyber-relations to develop faster than would otherwise be anticipated.

This is true not only for issues of international law governing the use of force, but also for international trade law. Baidu, the major Chinese internet search engine , saw its stock shares rise in price in the wake of the recent Google-China conflict. Baidu had already was the market leader, but was beginning to feel the squeeze from competition with Google — and Baidu will, undoubtedly, continue to benefit if the Google pull-out really does occur. It’s not hard to see where the potential for a national treatment violation lies in that, and it looks like Google’s lawyers have already been considering the possibility.

According to lawyers, the US could argue that Beijing’s censorship in effect discriminated against foreign services such as Google, contrary to its commitments under the General Agreement on Trade in Services (Gats).

“If China imposes harsher web filtering restrictions on Google than on local search engines, such as Baidu, Google may have a WTO discrimination claim,” said David Spooner, a former assistant secretary of commerce, now at the law firm Squire Sanders & Dempsey.

Interesting argument. But if their attorneys keep that kind of talk up, Squires Sanders & Dempsey may want to start being careful about opening any email attachments that come their way.

-Susan

Legal Unemployment, Worldwide

In thirty years, China has gone from having six law schools to having 634. Predictably, this is not entirely good news for the graduates of those schools, as law is now the hardest profession to find employment in:

Law has topped the list of the 10 most difficult professions to land a job in the country for two consecutive years, taking the No 1 slot in 2008 and No 2 in 2007, according to a joint study released in June 2009 by China’s Academy of Social Science and Beijing-based consulting company Mycos Institute.

However, I found this even more curious:

The other majors [that are difficult professions to find employment in] include computer science, English, international economics and trade, business administration, clinical medicine, Chinese literature, art design, electronic engineering and accounting.

To be fair, ‘Chinese literature’ and ‘art design’ might be the Chinese equivalent of an American liberal arts degree, the kind everyone derides as being not good for much in the real world. But clinical medicine? Engineering? Accounting? Business administration? These are the sort of majors that sensible, job-oriented students take that are, in the U.S., supposed to leave graduates happily having their pick of employment, while their lowly English lit classmates are waiting tables.

It suggests to me, anyway, that there is nothing particularly unique about the plight of law grads in China, but that the market for highly educated labor in general is somewhat stunted.

Still, this could very much be a hindrance to China’s long-term development.

“Law graduates have the most difficulty in job hunting, which means the supply has exceeded the demand,” Wang said.

“If there is no adjustment in place soon, it is not good for the development of law in the long run.”

Unlike the U.S. — which, I might reluctantly concede, may simply have an overabundance of lawyers in general — China has come no where near to meeting the potential demand for lawyers, but rather the legal infrastructure that would support all those theoretical legal jobs has yet to materialize. The creation of a political climate that respects the rule of law necessarily requires the presence of lawyers, however. China’s fledgling legal system is characterized more by the rule of men, but there is, at least in theory, a legal system in place. A healthy bar that continuously engage in litigation to resolve disputes may or may not eventually result in a robust Chinese legal system, but nothing else has a chance of doing so.

In other law school related news from China, U.S. law grads may eventually get some competition from China, if the Peking University’s School of Transnational Law succeeds in its plan of becoming the first non-American school to be accredited by the ABA.

-Susan