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Home Articles posted by Diane Desierto (Page 5)

The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part II

Published on January 30, 2015        Author: 

Yesterday I set out the background to the Position Paper issued by the China, on December 7, 2014, “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”] and examined China’s first objection to the jurisdiction of the arbitral tribunal. In this post, I consider the other Chinese objections.

Second Chinese Objection: Did the Philippines violate the duty to negotiate in regard to the subject-matter of this dispute, when it initiated the arbitration?

The China Position Paper effectively maintains that the ‘exclusive’ dispute settlement mechanism between the Philippines and China on the South China Sea is friendly consultations and negotiations (China Position Paper, paras. 30-39). This position would appear tenable, if one were to tacitly accept the characterization of the arbitration’s subject-matter as one involving claims for maritime delimitation, rather than merely the “interpretation or application of UNCLOS” to the maritime limits drawn in the 9-dash line map as well as to the submerged geographic features described therein.

Notwithstanding the disputed characterization of the arbitration’s subject-matter, however, it is difficult to see where a duty to exclusively pursue negotiations or friendly consultations exists. Ordinary textual examination of the bilateral instruments and multilateral instrument (e.g. the 2002 ASEAN Declaration on the Code of Conduct of Parties in the South China Sea) referenced in the China Position Paper, appears to militate against the notion of an exclusive choice of dispute settlement through ‘friendly consultations and negotiations’. Nothing in the language of the instruments therein definitively rules out compulsory arbitration under Part XV of UNCLOS – which as UNCLOS Part XV also explicitly stresses, is likewise a peaceful means of dispute settlement in international law. Read the rest of this entry…

 

The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part I

Published on January 29, 2015        Author: 

On December 7, 2014, China officially published its Position Paper “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”]. The China Position Paper was issued two days after the US State Department issued its December 5, 2014 Limits in the Seas No. 143 Report, “China: Maritime Claims in the South China Sea”, authored by its Office of Ocean and Polar Affairs and Bureau of Oceans and International Environmental and Scientific Affairs [hereafter, “US State Department Report”]. The US State Department Report concludes, in particular, that: “unless China clarifies that the dashed-line claim reflects only a claim to islands within that line and any maritime zones that are generated from those land features in accordance with the international law of the sea, as reflected in the [UN Convention on the Law of the Sea/UNCLOS], its dashed-line claim does not accord with the international law of the sea.” (US State Department Report, p. 24). China’s 7 December 2014 Position Paper provides its first official, public, and certainly most authoritative clarification of its arguments and claims to date, and certainly introduces a significant dimension to the ongoing arbitration proceedings. Vietnam is reported to have filed a (hitherto-undisclosed) statement to the Annex VII arbitral tribunal, asking the latter to take into account its legal interests while also refuting China’s claims. Although the China Position Paper explicitly states that it should “not be regarded as China’s acceptance of or participation in [the] arbitration” (China Position Paper, para. 2), the Annex VII tribunal is arguably not prevented from taking cognizance of the statements therein as part of China’s jurisdictional objections in this dispute. China itself circulated the Position Paper to members of the arbitral tribunal, albeit stressing that it should not be construed as acceptance of, or participation in, the arbitration (Permanent Court of Arbitration 17 December 2014 Press Release). In its 22 November 2013 Provisional Measures Order in the Arctic Sunrise case (Netherlands v. Russian Federation) – a case where Russia explicitly refused to appear in the proceedings – the International Tribunal for the Law of the Sea (ITLOS) took motu proprio judicial notice of two Notes Verbale by Russia to the Netherlands, as evidence of the nature and content of Russia’s jurisdictional challenge to the existence of a dispute between the parties (Arctic Sunrise Order, paras. 64-65, 68). Read the rest of this entry…

 

Editor’s Book Choices 2014: Does International Law Respond to Grassroots Inequality?

Published on December 29, 2014        Author: 

Crisis and stagnation in the global economy is the new normal, so say The Financial Times, McKinsey & Co., Business Insider, and the World Economic Forum at Davos in 2013. It is twelve days before the end of 2014 as I write this, and today’s new crisis is how the Russian rouble is spiralling dramatically in a deep currency crisis forcing Russia to take defensive measures against capital flight. Other main drivers of the world’s economy are not necessarily on safe footing. The Eurozone and the United States are still on the road to economic recovery from the global financial crises; Japan remains mired in recession despite the grand claims of ‘Abenomics’ to stem the tide; and this year, China – the main engine of global economic growth in the past decade – for the first time posted its slowest GDP growth rate in five years. Since the world plunged into global financial crisis around 2008, the promise and allure of globalization and global economic growth has waxed and waned, multinational and transnational business profit expectations have muted, and – as the International Monetary Fund put it rather bleakly in October of this year – growth will never be as good before the global crisis: “pessimism about the future was as strong [during the Great Depression] as it is now”. The International Labour Organization (ILO) dubs 2014 the year for the “risk of a jobless recovery”. If globalization is supposedly dying, as Princeton University Social Science Professor Dani Rodrik declares, is its inseparable fabric – international law – also headed for demise? In a postmodern crisis-saturated world now so riven by “economic insecurity and the rise of nationalism”, can international law still meaningfully respond?

My pursuit of this question throughout this year led me to three provocative books outside of international law – two in political economy, one in contemporary literature. These works helped me, at least, in provoking a reframing of the economic and social configurations we accept – and to a certain extent, author and promote – in international law, especially in international economic law specializations in trade, finance, and investment. Long before French economist Thomas Piketty’s Capital in the Twentieth Century became the rage in economic and political circles around the world in 2014, it was Nobel Prize laureate Joseph Stiglitz’s The Price of Inequality (W.W. Norton & Company, 2012) that made the powerful argument against the seeming inevitability of inequality, pointing out that so much of today’s debilitating income inequality – as seen in the example of the United States – is a product of the rents and inefficiencies created through the wrongful exercise of political power in legislative and regulatory processes. Read the rest of this entry…

Filed under: EJIL Book Discussion
 

The EU/US v. Russia Trade Wars: Revisiting GATT Article XXI and the International Law on Unilateral Economic Sanctions

Published on September 22, 2014        Author: 

The EU, US, and Russia are far from reaching any détente in the economic warfare waged between some of the world’s economic powerhouses. On 11 September 2014, the US and EU announced a deepening of their current joint economic sanctions over Russian actions in the Ukraine, this time imposing sanctions targeting Russian banks and oil companies. The new EU September 12 sanctions exclude Russian banks from raising long-term loans in the EU, ban any exports of dual-use equipment for military use in Russia, ban future EU-Russia arms deals, and prohibit EU export of oil industry technology to Russia. The United States has also announced that it would likewise deepen and broaden sanctions against Russia’s financial, energy, and defense industries. In response, Russia announced a “full embargo” on food imports from the United States, the European Union, Canada, Australia, and Norway, which it subsequently expanded in September to include used cars, clothes, and consumer products, in retaliation for the latest round of EU and US sanctions. On 12 September 2014, Russian Economy Minister Aleksey Ulyukaev announced that the latest round of US and EU sanctions “provides grounds for appeal to the WTO..and [Russia] will appeal.”

Does Russia have a plausible case against the US and the EU at the WTO?

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Evidence in Environmental/Scientific Exceptions: Some Contrasts between the WTO Panel Report in China-Rare Earths and the ICJ Judgment in Whaling in the Antarctic

Published on April 7, 2014        Author: 

Rare earths imageTwo significant international decisions involving environmental protection claims were issued within the last few days of March 2014.  On 26 March 2014, a World Trade Organization (WTO) Panel issued its Report in China-Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum (hereafter, China-Rare Earths), which held, among others, that “China may not seek to justify the export duties it applies to various forms of rare earths, tungsten, and molybdenum [pictured above left, credit] pursuant to Article XX(b) [exception for measures “necessary to protect human, animal or plant life or health”] of the GATT 1994.” (Panel Report, para. 8.11b)  On 31 March 2014, the International Court of Justice issued its Judgment in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) (hereafter, the Whaling case) where the Court held, among others, that “the special permits granted by Japan in connection with JARPA II [Japanese Whale Research Programme under Special Permit in the Antarctic Phase II] do not fall within the provisions of Article VIII, paragraph 1 [, of the International Convention for the Regulation of Whaling.” [Judgment, para. 247(2)].  In China-Rare Earths, China sought to justify export duties that facially violated Paragraph 11.3 of China’s Accession Protocol to the WTO, by essentially alleging that these duties were justifiable as measures “necessary to protect human, animal, or plant life or health” within the purview of Article XX(b) of GATT 1994.  In the Whaling case, Japan sought to justify JARPA II as a programme “undertaken for purposes of scientific research and is therefore covered by the exemption provided for in Article VIII, paragraph 1, of the [International Convention on the Regulation of Whaling].” (Judgment, para. 49).  While both decisions contain rich analyses of numerous issues of treaty interpretation, one can also look at significant methodological contrasts between the ICJ and the WTO Panel on the treatment of scientific evidence and assignment of evidentiary burdens for the environmental/scientific issues in each case.

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The Right to Regulate for Public Morals Upheld (Somewhat): The WTO Panel Report in EC-Seal Products

Published on January 27, 2014        Author: 

Whitecoat Seal PupThere have been few interpretations of Article XX(a) of the General Agreement on Tariffs and Trade (GATT 1994) – the  specific exception that justifies what would ordinarily be a State’s GATT-inconsistent measure, unless such measure is deemed “necessary to protect public morals”.  As with any of the ten enumerated exceptions under Article XX of GATT 1994, a State invoking GATT Article XX(a) must first meet the requirements of the specific exception (e.g. demonstrating that the challenged measure is indeed “necessary to protect public morals”), and thereafter show that the challenged measure also complies with the overall requirements of ‘good faith’ (Brazil – Measures Affecting Imports of Retreaded Tyres, Appellate Body Report of 3 December 2007, at para. 215) as contained in the chapeau to Article XX (e.g. demonstrating that the challenged measure is not being applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade).  The 25 November 2013 Panel Report in European Communities – Measures Prohibiting the Importation and Marketing of Seal Products [hereafter, “EC-Seal Products“] issued the very first decision upholding a State’s right to regulate for public morals as an exception under Article XX(a) of GATT 1994, in relation to ongoing trade arising from seal hunting (pictured above left,) and seal products.

It may be recalled that the 2009 Panel Report in China- Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products [hereafter, “China – Publications and Audiovisual Products“] was the first occasion for a WTO panel to directly interpret the scope and meaning of measures “necessary to protect public morals” under GATT Article XX(a). China had invoked the “public morals” exception in GATT Article XX(a) to justify a set of measures that regulated the entry of foreign publications, audiovisuals and other media forms.  China argued that its regulations were designed to protect public morals in China by reviewing the content of foreign cultural goods and forms of expression that could potentially collide with significant values in Chinese society.  The China – Publications and Audiovisual Products Panel had little trouble accepting the interpretation of “public morals” (China-Publications and Audiovisual Products, para. 7.759) already laid down in the 2004 Panel Report in United States- Measures Affecting the Cross-Border Supply of Gambling and Betting Services [hereafter, “US-Gambling“], which had defined “public morals” in Article XIV of the General Agreement on Trade in Services (GATS), as “standards of right and wrong conduct maintained by or on behalf of a community or nation” (US – Gambling, para. 6.465).  However, the Panel ultimately rejected China’s assertion of GATT Article XX(a) exception (China-Publications and Audiovisual Products, para. 7.911), finding that China had failed to show the “necessity” of its challenged measures for the supposed purpose of protecting public morals.  The Appellate Body upheld these findings in its December 2009 Report.

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Ripples in the East and South China Seas: Aid, ADIZs, Aircraft Carriers, and Arbitration

Published on December 1, 2013        Author: 

0912ChinaSeaTerritory2In the past few weeks throughout November 2013, various incidents have sharply demonstrated China’s foreign policy preferences in relation to disputes with neighbors over the East and South China Seas (pictured above left, credit), as well as its self-perception of its broader hegemonic role in the Asian region.  I recently spoke on regulatory freedom and control under the new ASEAN regional investment treaties at the international investment law panel organized and led by Dr. Stephan Schill of the Max Planck Institute and Professor M. Sornarajah of the National University of Singapore, at the Fourth Biennial Conference of the Asian Society of International Law (AsianSIL) held in New Delhi, India from 14 to 16 November, 2013.  In the same conference, I witnessed firsthand the rare exchange  between China’s Judge Hanqin Xue of the International Court of Justice during the presentation made by my former University of the Philippines colleague Professor H. Harry Roque on the Philippine arbitration claim filed against ChinaIn a detailed reply after Professor Roque’s presentation, Judge Xue noted that there was no other Chinese scholar or delegate in the AsianSIL conference, and said she would thus take the opportunity to analyze the Chinese position on the Philippine arbitration.  She did stress, however, that her remarks were made in her personal capacity, and not in any way reflective of her views as a Member of the Court and certainly not representative of China’s official position on the South China Sea.)

First, Judge Xue observed that the questions in the Philippine claim, taken in their totality, in reality amount to territorial questions that fall well outside the scope of the subject-matter jurisdiction of the UN Convention on the Law of the Sea.  Second, she stressed that around forty states (including China) had not accepted compulsory jurisdiction under the UNCLOS dispute settlement procedure.  Third, she related her experiences as China’s Ambassador to ASEAN during the passage of the Declaration of the Code of Conduct on the South China Sea, where, in her view, the littoral States signing the declaration clearly assumed the obligation to resolve the South China Sea disputes through negotiations and not through compelled arbitration.  Finally, she expressed that China decided not to participate in the UNCLOS arbitration initiated by the Philippines because no country could have “failed to see the design” of the Philippine claim which “mixed up jurisdiction and merits”, and that it tended to complicate the full range of regional maritime issues and inhibit confidence-building measures between the seven States parties to the dispute.  Judge Xue stressed that all parties to the South China Sea dispute would do better to cooperate on issues gradually (such as, first, through rapid response disaster risk reduction in maritime disasters and maritime-related environmental hazards) to build confidence steadily among the States enough to reach multilateral agreement on joint resource management and resource uses over the disputed area.  Even though issued in her personal capacity, the remarks of China’s most senior international judge certainly suggests, at least, that there is some groundswell towards peaceful cooperative actions for resolving maritime disputes in the Asian region.

Subsequent actions taken by the Chinese government in the past week, however, seem to demonstrate some equivocation to the above views.  On November 23, 2013, China announced that it was marking its own “air defense identification zone” (ADIZ) to include airspace over the disputed islands (Senkaku Islands according to Japan, Diaoyu islands according to China) in the East China Sea.  Similar to other ADIZs established by the United States, Canada, Russia, among others, China established its ADIZ by declaration, and not by treaty.  An ADIZ may be established over territorial waters or land, but it may also be declared over high seas or extended into international airspace adjacent to national airspace. (Nicholas Poulantzas, The Right of Hot Pursuit in International Law, Martinus Nijhoff, 2002, at pp. 341-342.)  In the latter instance, foreign aircraft passing through the ADIZ would be required to provide the State administering the ADIZ with advance warning information only if the aircraft’s final destination is the said State. Read the rest of this entry…

 

The Global Countdown to October 17: International Responsibility for Foreseeable and Deliberate Sovereign Defaults?

Published on October 8, 2013        Author: 

EJIL Talk Oct 2013The daily political saga of the United States federal government shutdown has the rest of the world riveted – not just for the ratcheting rapid-fire exchanges between President Barack Obama and Republican House Speaker John Boehner (pictured above left, credit) – but more so for the increasing threat that the United States will declare an unprecedented default on a massive portion of its government debt, if, by October 17, the Legislative and Executive branches cannot reach agreement on lifting the United States Treasury’s debt ceiling.  IMF Managing Director Christine Lagarde has said that failure to raise the debt ceiling would be a “far worse threat to the global economy than the current shutdown”.  China and Japan, both holders of significant volumes of US Treasury Bills,  have publicly asked the United States to resolve the impasse and prevent looming damage to their investments.  Fears of a global crisis sparking if the US defaults on October 17 have dominated the opening of the 2013 Asia-Pacific Economic Cooperation (APEC) Forum in Bali, Indonesia, where President Obama’s absence has conspicuously elicited skepticism of the durability of US foreign policy in its ‘pivot’ to the Asia-Pacific, and the United States’ ability to  conclude the negotiations for a Trans-Pacific Partnership agreement (TPP).

Should there be any US default by October 17, it may well be argued that this kind of sovereign default has a peculiar quality of avoidability and foreseeability, where the State had some conceivable measure of control over the default.  Could the United States be internationally responsible to other States (either those suffering the direct result of non-payment of debts, or those affected by a global economic crisis sparking from a US default), if it knew of the global economic impacts of an unprecedented US default and could have avoided it by acting swiftly to lift the debt ceiling, but failed to thus act?

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Filed under: EJIL Analysis
 
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