Will China force the USA’s hand to revisit the Law of the Sea Convention?

On 28th May, US President Barack Obama again called upon the US Senate to ratify the UN Convention on the Law of the Sea 1982 (LOSC), following tension in the South China Sea. This area of the ocean is notoriously problematic, with China claiming sovereignty over almost all of the South China Seas and failing to recognise any rival claims from neighbouring States, such as Vietnam and the Philippines. Conflict appears to have been renewed afresh when Vietnam reported that a Chinese flagged vessel had intentionally struck two of its ships in the area at the beginning of May.

Although China has ratified the LOSC, it asserts that it has a historical claim over disputed islands that pre-date the 1982 treaty. On 1st June, the Deputy Chief of the General Staff of the People’s Liberation Army, Wang Guanzhong, speaking in the Shangri-La Dialogue, maintained that the Convention was “not the only point of reference” in adjusting sovereignty over islands and seas, strongly suggesting that mounting disputes and its membership of the Law of the Sea Convention would not cause it to reconsider the infamous ‘Nine Dash Line’ that demarcates its claim to the South China Sea. It takes this stance despite the fact that the Philippines filed a case with the International Tribunal on the Law of the Sea in March challenging its sovereignty (China having already made known its refusal to take part in any such arbitration).

Nine Dash Line, Source: BBC.com

At the same summit, US Defense Secretary, Chuck Hagel, promised that the US would “not look the other way” whilst international law provisions were breached. However such statements would surely be more meaningful and persuasive if the USA itself had ratified the LOSC? Such a stance could appear to be hypocritical and difficult to take seriously. Although the Convention entered into force in 1994 and has since been ratified by 166 parties, the USA is yet to sign. The vote of at least two-thirds of the Senate is required to ratify a treaty, at least 67 Senators in this case. In 2012, 34 Republican Senators formally declared they would not support the ratification of the treaty; many feel that the LOSC would give the International Seabed Authority too much power over US commercial interests.

As tensions continue to escalate in the South China Seas, it will be noteworthy to see whether China will compel the US Senate to end its longstanding Democrat-Republican tug of war on this Convention. What’s more, if the US relents and signs the LOSC, however unlikely, what will its next move be? How will the US ratification of the treaty resolve these disputes and conflicting claims to land, sea and resources? It remains to be seen whether such talk by the USA will in fact lead to affirmative action or whether this is simply a shot across the bows.

U.S. v. Cambodian Sculpture: 3 Years Later

U.S. v.  Cambodian Sculpture: 3 Years Later

Exactly 3 years ago today, this thousand year old Khmer masterpiece was put on the auction block at Sotheby’s, where it was expected to fetch $3 million. It was pulled from sale when Cambodia demanded its return, citing evidence it had been looted during the country’s bloody civil war. 6 weeks later, the US government filed a civil forfeiture action, seeking to recover and repatriate the statue. This litigation made headlines around the world, and was only resolved 3 months ago, when Sotheby’s settled. To learn more about the case — U.S. v. 10th-century Cambodian Sandstone Sculpture — click the photo and visit the New York Times.

Write On! The Cambodia Law and Policy Journal

The Documentation Center of Cambodia (DC-Cam) is pleased to announce Cambodia’s first bi-annual academic journal published in English and Khmer: The Cambodia Law and Policy Journal (CLPJ).

DC-Cam strongly believes that empowering Cambodians to make informed demands for change will strengthen the rule of law in Cambodia and other Southeast Asian countries. As empowerment for change requires awareness and dialogue, CLPJ’s mission is to promote scholarship and discussion of urgent legal, social, and development issues facing the Southeast Asian region.

CLPJ welcomes article submissions on these topics as well as more general discussion and commentary on human rights and transitional justice issues in post-conflict settings.

DC-Cam is an independent Cambodian-staffed research institute that began as a field office of Yale University’s Cambodian Genocide Program. The Center’s programs educate Cambodians about the Khmer Rouge era (1975-1979), and record and preserve physical and oral history from that time. DC-Cam’s archives hold the world’s largest collection of Khmer Rouge documentation and serve as a primary source of evidence for the hybrid national/international Extraordinary Chambers in the Courts of Cambodia (ECCC).

DC-Cam is in the process of transforming itself into the premier Asian center for conflict and human rights studies, to be called the Sleuk Rith Institute. Acclaimed London-based architect Zaha Hadid, 2004 recipient of the Pritzker Architecture Prize, is working with DC-Cam on its physical design, which will house a museum, research center, and a graduate studies program. The Cambodia Law and Policy Journal, part of the Center’s Witnessing Justice Project, will be the Institute’s core academic publication.

ARTICLE SUBMISSIONS: The CLPJ is now accepting articles relevant to urgent legal, social, and development issues facing the Southeast Asian region for peer review and publication in print and online. Traditional academic articles on a wide range of topics including justice, governance, labor, education, business, land ownership, and natural resource development are welcome. Nontraditional formats such as narrative, commentary, interview, essay, and artwork are also encouraged.

STUDENT EDITORS: The CLPJ is seeking graduate and law students to assist with periodic editing of articles. No financial compensation will be provided; this is an opportunity to help a renowned Cambodian organization galvanize analytical debate and scholarship in Cambodia and the Southeast Asia region.

Article submissions and/or letters of interest regarding journal editing should be sent to Anne Heindel, Editor-In-Chief, Cambodia Law and Policy Journal, at cambodialpj [at] gmail.com.

For more information, visit http://www.dccam.org.

Linking Art and Protest: The Campaign to Free Dr. Wang BingZhang

Dr.WangBZ_Photo1While China’s newest internet crackdown policy has made the news recently, considered by some as the harshest campaign against pro-democracy voices in Chinese society since the 1989 Tiananmen Massacre, pro-democracy activist Dr. Wang BingZhang continues to languish in a Chinese prison serving his 11th year of a life sentence in solitary confinement.

Wang BingZhang received his PhD in coronary-arterial research at McGill University in Canada while on a Chinese government scholarship. After receiving his degree, he renounced his medical career to dedicate his life to pro-democracy Chinese activism. He found China Spring, the first Chinese magazine in the US devoted to China’s freedom, and also found several democratic parties and organizations. Dr. Wang has been in the custody of the Chinese government since July 3, 2002, after being kidnapped in Vietnam, where he travelled on June 27, 2002 to meet with Chinese labor activists. He was tried secretly on January 22, 2003 in a closed trial that lasted less than a day—violating internationally recognized concepts of due process—and was the first person to be convicted under China’s then new espionage and terrorism laws, which were passed in a post 9/11 anti-terrorism effort. His sentence is the harshest levied on a political prisoner since 1989.

Over the last few weeks, actions across New York City have called for the compassionate release of Dr. Wang. The kick off on September 9th was the staging of an art performance protest in Times Square, entitled “In the Cage with Wang Bingzhang.”  The visual representation of this protest has the possibility of increasing its impact as it draws the attention of the viewer. The first night, Dr. Wang JunTao, Democratic Party of China Leader and an organizer of the Tiananmen Square student movement, sat in the cage with Dr. Wang Bingzhang’s elder sister, Yuhua (Linda), who was visiting from Canada and has not been able to see her brother for over four years due to a visa denial by the Chinese government for reasons they claim are privileged information. Activists and passersby have continued to sit in this simulated ‘prison cage’ day and night, and are slated to do so through week’s end.  They are inviting concerned citizens to come and sit in the cage to show their support. Artist and dissident Ai WeiWei (who has tweeted his support for Wang) has highlighted the role of art in Chinese democracy movements, where art and protest meet in performance.  In this case at least, it seems the art has the potential to strengthen the protest message. Continue reading

Introducing Frances Nguyen

Frances NguyenFrances Nguyen is a recent law graduate of Lewis & Clark Law School based in Portland, Oregon. In 2011, she traveled to Vietnam and Cambodia to study international criminal law. While in Phnom Penh, she visited the Killing Fields and the Extraordinary Chambers in the Courts of Cambodia (ECCC). Her experience there inspired her to research and write about forced marriage. Last year, she spent a semester working at the Office of the Co-Prosecutors at the United Nations Assistance to the Khmer Rouge Trials (UNAKRT) in Cambodia. At UNAKRT, she worked with Prosecutors to ensure sex and gender-based crimes such as rape and forced marriage were thoroughly investigated and included alongside other crimes against humanity.

At Lewis & Clark, Frances became active in immigration law and civil rights. She volunteered at the Oregon Justice Resource Center by helping refugees fill out their paperwork to become naturalized US citizens. She worked as a law clerk at the Asian American Legal Defense Education Fund (AALDEF) in New York City by helping former labor trafficking victims to apply for a T-Visa. Before coming to law school, Frances worked as a consular aide at the Taipei Economic and Cultural Office, which serves as a de facto consulate for Taiwan. She holds an MA in Political Science with a concentration in International Relations and Comparative Politics from Georgia State University (2009) and a BA in International Relations from Agnes Scott College (2005).

Frances’ introductory post today discusses the issue of consent in arranged and forced marriage.  Heartfelt welcome!

 

Whaling at the ICJ – Oral Proceedings in Australia v Japan

Common Minke Whale Photo By Simon Pierre Barrette Creative Commons ShareAlike License
What had seemed a quixotic effort to stop Japan’s Southern whaling program using international law is looking like a more even fight. In the oral proceedings underway for Australia’s challenge to Japan’s whaling program (JARPA II) at the International Court of Justice, Japan argues that—in a world of more than 7 billion people—cultural differences must be respected and the International Convention on the Regulation of Whaling (ICRW) must be applied with a “margin of appreciation” for Japan’s interpretation of the treaty. (Australia notes that the concept of a margin of appreciation developed in the European Union Courts to allow states to fine-tune EU law according to national culture and social policy, and is not a rule of international law.)

According to Japan, it hunts whales to collect scientific information as permitted by an exception to the global moratorium on “harvesting” whales under the ICRW. Australia argues that JARPA II has no scientific basis or merit, and that Japan conducts it in the manner of a commercial venture, not scientific research; it quotes a statement made in the Japanese Diet vowing to use the scientific exception to continue whaling.

New Zealand, intervening as a party to the ICRW, stresses that the treaty was intended “to replace unilateral whaling with a system of collective regulation,” whether a state’s interest is in using whales or protecting them for their own sake. Japan’s actions, Australia argues, have in effect reduced its treaty obligations to facultative ones and so dissolved the treaty rights of all other treaty members.
Australia has decided not to make claims based on two other conventions, CITES and the Convention on Biodiversity mentioned in its application (for discussion of these, see Don Anton’s ASIL Insight).

The most interesting arguments have discussed the nature of scientific research and its relation to law. Japan argues that “the case concerns the legality of Japan’s activities under international law and not ethical values or the evaluation of good or bad science” and that the ICJ has no role in evaluating JARPA II. It has submitted very little by way of scientific evidence to support the validity or productivity of the whaling program.

In contrast, Australia and New Zealand emphasize that the questions before the Court are straightforward and offer the Court a number of criteria to assess whether JARPA II is scientific research. These include the lack of peer review of JARPA II, the arbitrary determination of sample sizes (i.e., the number of whales to be killed each year), and the insistence on lethal methods. The presentation and cross-examination of experts is a highlight of the video; a great change from the criticized approach to experts in the Pulp Mills case. The judges’ numerous questions indicate that they are interested in the scientific arguments, and not deferential to Japan’s claim of right to determine unilaterally whether JARPA II is, in fact, research.

Although killing whales—particularly endangered species such as humpback and fin whales, both of which are included in Japan’s whaling program—is an issue of grave concern to many states and nongovernmental organizations, only New Zealand has intervened and the ICJ has not invited amicus briefs or expert opinion from non-parties.

The jurisdictional issue has received scant attention. It is possible that the Court may, in the end, accept Japan’s argument that it does not have jurisdiction. While that may change the dynamic of the conflict over whaling, there are still many political avenues where it will continue to play out. Although anti-whaling activists have thwarted the whalers in recent years—acknowledged in the Japanese oral argument—Japan’s Institute of Cetacean Research has retaliated with a lawsuit in U.S. court and won a favorable decision in the 9th Circuit.

A decision is expected from the ICJ by the end of the year around the time the next whaling season will begin. The oral proceedings will continue with Japan’s second round of oral argument on 15 July: live and archived webcasts and transcripts are available. It provides an exceptional opportunity to watch many of the great international litigators, including Laurence Boisson de Chazournes, at work.

What do Bangladesh and Snowden Have in Common?

The country of Bangladesh and US fugitive Edward Snowden are both at the center of questions over the future of two U.S. trade preferential programs — the Generalized System of Preferences (GSP), and the Andean Trade Preference Act (ATPA) programs.

GSP is a program that allows about 5,000 products from about 127 developing countries to enter the United States on a duty-free basis. GSP duty-free access benefits exporters from developing countries as it helps them to be competitive in the U.S. market. US importers also rely on the program for access to lower-priced consumer goods and manufacturing inputs. Developed countries, like the United States, extend GSP unilaterally to beneficiary countries; it is not the result of a negotiated agreement.

In the United States, the program is authorized by legislation. The US President also has the authority to remove previously eligible countries that fail to meet the specified requirements.

On June 27th, President Obama announced the suspension of Bangladesh from the program. Though under review for some time, the timing of the decision is a direct result of the death and injury in April (2013) of hundreds of garment workers as a result of poor working conditions.

Bangladesh garment factory (Courtesy of Wikipedia Commons)

Bangladesh garment factory (Courtesy of Wikipedia Commons)

Sadly, it is difficult to see how the lot of the workers has been improved by this decision. The garment industry is notoriously fickle. Companies have moved operations all around the world in search of the cheapest inputs and of countries whose products are allowed duty-free access back to their home markets. Complete loss of GSP access to the US market for products from Bangladesh is likely to result in loss of jobs for Bangladesh workers. We can only hope that the suspension will spur the government and private companies to move at warp speed to improve working conditions.

On the same day, President Correa of Ecuador, who is reviewing an application for asylum by Edward Snowden, announced his intention to refuse the benefits that Ecuador receives under the ATPA. Ecuadorean government officials have accused the United States Government of using the program to blackmail the country for its willingness to review Snowden’s asylum request. Ecuadoran products are also eligible for unilateral duty-free entry under the GSP program. The Obama Administration is also said to be considering expelling Ecuador from GSP. The US Government has been known to wield threats of denying access to GSP and other preferential programs by countries with whose actions they disagree. Ecuador apparently has decided to act first. Meanwhile, however, this leaves Ecuadorean exporters wishing to access the US market at a disadvantage.

Profile of Ecuador's exports (Courtesy of Wikipedia Commons)

Profile of Ecuador’s exports (Courtesy of Wikipedia Commons)

It is also worth noting that both the GSP and ATPA programs are set to expire on July 31, 2013. This won’t be the first time. The programs periodically expire and are then renewed again. Unfortunately, these periods of expiration seriously inconvenience and harm the companies that rely on the programs. President Correa’s actions increase the likelihood that the ATPA may not be renewed any time soon, if at all. Trade programs, like GSP and ATPA, that provide a lifeline for many small exporters in developing countries, should not be held hostage to politics.

Call for Applications: The Hague Academy of International Law’s 40th External Programme

The Hague Academy of International Law‘s External Programme was established at the end of the 1960s and has been held annually in countries in Africa, Asia, and Latin America.  The Programme serves as a means for developing knowledge on topics of international law relevant for the region where it is held and for fostering dialogue among participants through interactive teaching and informal meetings.  It is aimed at young university teachers,  diplomats, and civil servants from Ministries of Foreign Affairs or other interested ministries with competencies in public international law.

The Hague Academy will be holding the 40th session of the External Programme from 1 to 8 November, 2013 at the Gujarat National Law University (GNLU) in Gandhinagar, India.  This year’s subject is “Stability and Change in the Law of the Sea: Challenges for the 21st Century.”  The session is free of charge for local and regional participants; the Hague Academy and GNLU will cover costs of travel and accommodation, as well as a per diem stipend for regional participants.

Local Participants | The Indian government will select approximately 20 participants.  Any interested individuals should contact the organizers at hague@gnlu.ac.in in order to apply.

Regional Participants | The Academy will select approximately 15-20 participants from the following countries: Afghanistan, Bangladesh, Bhutan, Cambodia, Indonesia, Laos, Malaysia, Maldives, Myanmar, Nepal, Pakistan, Singapore, Sri Lanka, Thailand, and Vietnam.  Interested individuals can register online.

The closing date for applying is July 13, 2013.  All information, including a detailed program of events,  regulations, guidelines for applying, and the registration form for regional participants, can be found on the website of the Academy, here.