Home Articles posted by Douglas Guilfoyle (Page 2)

A new twist in the South China Sea Arbitration: The Chinese Society of International Law’s Critical Study

Published on May 25, 2018        Author: 

On Monday 14 May 2018 the Chinese Journal of International Law, an Oxford University Press journal, published an extraordinary 500 page “Critical Study” of the Awards on jurisdiction and the merits in the South China Sea Arbitration between the Philippines and China. Readers will recall the case was brought under the UN Convention on the Law of the Sea (UNCLOS) by the Philippines against China and that there was an awards on jurisdiction in 2015 and a final award on the merits in 2016 (discussed in many places including here, here, here, here and here). The Critical Study was produced by the joint efforts of some 70 scholars and is listed as having been authored by the Chinese Society of International Law (CSIL). It examines almost every issue raised in the case – and several that weren’t – and concludes the Tribunal was catastrophically wrong on every single point, right down to how many times the Philippines was allowed to amend its pleadings.

The extent to which the Critical Study manages to strike a temperate and balanced tone towards the Awards made by the arbitral tribunal is summed up in the introduction:

“These awards are not conducive to solving the dispute between China and the Philippines in the South China Sea; instead, they have complicated the related issues. They have impaired the integrity and authority of [UNCLOS], threaten to undermine the international maritime legal order, run counter to the basic requirements of the international rule of law, and also imperilled the interests of the whole international community” [para 5].

Like pirates, the Tribunal members it seems are close to hostes humani generis and their award a threat to international legal order. The other blow to any semblance of academic neutrality in the book-length Critical Study is the one issue it studiously chooses not to address: China’s refusal to participate in proceedings. The Critical Study, while challenging almost every other paragraph of the award is entirely silent as to the Tribunal’s plainly correct finding that China – even if it disputed jurisdiction – was bound by its voluntary membership of UNCLOS to participate in proceedings. Further, UNCLOS makes clear China was bound by the result of such proceedings, even in the event of non-appearance. Indeed, this is why in UNCLOS cases where the UK and France disputed jurisdiction, for example, they have nonetheless shown up to make the argument.

In any event, the Critical Study raises a number of very interesting questions both in terms of the legal arguments it makes and in the simple fact of its existence. In the remainder of this (unfortunately long) post I would like to offer some brief and necessarily initial observations on following issues:

  • First, what is the significance of the critical study as an intervention in the debates about the South China Sea award, and what does it tell us about Chinese approaches to international law?
  • Second, is there any merit to the substantive legal arguments advanced by the Critical Study? (And what do these arguments tell us about Chinese approaches to international law?) I will put aside here the issues of both jurisdiction and the legal definition of islands capable of generating significant maritime zones (on which reasonable minds have differed) and focus on arguments regarding Chinese historic rights in the South China Sea and whether the Spratley Islands can be considered an archipelago.

  Read the rest of this entry…


Philippines v China: first thoughts on the Award in the South China Seas Case

Published on July 12, 2016        Author: 

Any international lawyer looking at a news site in the last few hours will have seen that the final award has been handed down at the Permanent Court of Arbitration in the Philippines v China dispute brought under the UN Convention on the Law Sea Annex VII procedure. The arbitral tribunal’s decision is simply historic. While Philippines has lost on a number of smaller points, the scale of its win overall is much greater than most commentators were expecting.

What follows is a very preliminary comment – and I stress that faced with a 500 page decision I may well revise my views later. It is also more in the nature of an explainer than a deep dive on any of the many legal questions already highlighted below. (This is also an excessively long post, for which I apologise.) However, on a first, quite brief, examination the tribunal has attempted to be meticulously fair to China and has applied the UN Convention on the Law of the Sea strictly and thoroughly. It has delivered a result which was, by and large, predictable.

James Kraska of the US Naval College has summarised the key holdings as:

  • the nine dash line has no basis in law,
  • there are no islands in the disputed area within the meaning of Article 123, UNCLOS,
  • China has interfered in the Philippines’ EEZ; and
  • China’s actions have aggravated the dispute.

I would add to this list three matters. First, the Tribunal has concluded that Mischief Reef is a low tide elevation over which no State can claim sovereignty or possession. This means it is simply a maritime feature within the Philippines exclusive economic zone (EEZ). Chinese island-building activities there are thus not merely without legal effect but are in violation of the sovereign rights of the Philippines.

Second, it has found that China has breached various obligations under UNCLOS regarding the protection and preservation of the marine environment by having caused severe and irreparable harm to coral reef ecosystems in its construction of artificial islands in the South China Seas.

Third, international tribunals normally bend over backwards to avoid findings of bad faith against a state. That is, one cannot act in bad faith without violating some other substantive right. So most tribunals consider it sufficient to stop at determining that a right or duty has been violated. This tribunal has found China violated Article 300 of UNCLOS: the duty to act in good faith. This is an extraordinary rebuke and a clear indication that the law of the sea dispute resolution system will not be cowed by the posturing of the superpower. As a matter of principle, it takes a principled stand on the supremacy of the rule of law. As a matter of pragmatism, it flies in the face of the conventional wisdom that angering China over this dispute could jeopardise the stability of the law of the sea system.
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China, the Philippines and Oil Rig HD-981: A New Flashpoint in the South China Sea Dispute

Published on May 23, 2014        Author: 

South_China_Sea_vector.svgTensions between China and Vietnam over the disputed Paracel islands erupted into anti-Chinese riots this week in Vietnam. The immediate cause is the positioning of a deep sea exploratory oil rig, the HD-9H1, 17 nautical miles from Triton Island, the south-western most feature of the Paracel group. It is also within 200 nautical miles of the Vietnamese coastline and therefore potentially within the EEZ of Vietnam. (The map at left shows China’s claims in the South China sea as well as each country’s 200-mile exclusive economic zone. Click to enlarge. Credit.)

The underlying dispute is of course whether Vietnam or China has sovereignty over these maritime features. If they do belong to China, any maritime zone they generate would be opposable to Vietnam and a maritime delimitation would be needed to sort out the respective boundaries. Is recourse to international dispute resolution – if not by consent, then initiated by Vietnam – likely in such a case?

The situation obviously has some parallels with the Philippines v China arbitration initiated under the UN Convention on the Law of the Sea (UNCLOS). Indeed, such Annexe VII arbitrations under Part 15 of UNCLOS are undergoing something of a renaissance at present. Other than the Philippines v China case, there is also obviously the pending arbitration in the case of the MV Arctic Sunrise (Netherlands v Russia) – both cases in which a major power has threatened nonappearance. More positively, hearings under the auspices of the Permanent Court of Arbitration recently concluded between Mauritius and United Kingdom concerning the dispute which followed the UK’s pronouncement of a marine protected area around the Chagos archipelago. The attraction of UNCLOS arbitration is that dispute resolution under the Convention is, in principle, compulsory; the downside is that it is riddled with complex exceptions. (As I have noted in a previous post.)

Could this be the next case to go to an Annexe VII Tribunal? The problems with relying on this mechanism to resolve maritime boundary disputes, or disputes concerning the underlying title to an island, are well known. Read the rest of this entry…


“The City and the City” and Public International Law

Published on October 16, 2013        Author: 

City and CityThe City and the City. It is, at its core, a novel about jurisdiction, and its setting is one of Miéville’s most fascinating creations. Miéville himself is no stranger to international law, being the author of Between Equal Rights: A Marxist Theory of International Law (2005). His novel demonstrates an unsurprising interest with the possibilities of law and its relationship to society and culture.

Superficially, The City and the City is a police procedural. In Besźel, a declining city-state somewhere in Eastern Europe, inspector Tyador Borlú finds a murdered woman. The suspicion is she was murdered in the neighbouring city-state of Ul Qoma. The extraordinary part of the novel is the relationship between these two cities. They are legally separate sovereign nations occupying the same physical space. While some “total” streets or districts belong entirely to one nation or the other, many are “crosshatched”. In these areas the two cities physically coexist alongside each other but legally their citizens may not interact, nor in any manner acknowledge each other’s existence, nor respond to events occurring in the “other” city. This difficulty is managed by the cultural practice of “unseeing” those things one is not legally entitled to see. (Given a moment’s thought this is less implausible than many speculative or weird fiction premises. Most of us unsee things of greater and lesser importance in our urban environment we find inconvenient to acknowledge: the homeless, the mentally disturbed, those collecting for charity, tedious acquaintances, etc.) Read the rest of this entry…


Greenpeace ‘Pirates’ and the MV Arctic Sunrise

Published on October 8, 2013        Author: 

MV Arctic SunriseAs is now well-known, on 18 September several Greenpeace activists attempted to board Gazprom’s oil platform, the Prirazlomnaya, in the Russian Exclusive Economic Zone (EEZ) bearing ropes and posters. They did do in inflatable craft launched from the Greenpeace vessel the MV Arctic Sunrise. They were soon arrested by the Russian Coast Guard. On 19 September the Russian Coast Guard boarded, within their EEZ but outside territorial waters, the Arctic Sunrise itself (a Netherlands flagged vessel) and arrested those on board.

I have already blogged at The Conversation as to why the Greenpeace protestors are self-evidently not pirates at international law. (In short, their acts were neither violent nor committed against another ship.) Vladimir Putin even agrees, but nonetheless the protestors and all aboard the Arctic Sunrise have been charged with “piracy of an organised group”.

Now the Netherlands government has commenced arbitration proceedings against Russia over the detention of the Arctic Sunrise and, it seems, the legality of its seizure. These proceedings will have two limbs: (1) seeking the release of the vessel and crew; and (2) the merits of the case concerning the lawfulness of the Russian action against both those aboard its oil platform and the Arctic Sunrise.

The case will be heard by an arbitration panel constituted under the UN Convention on the Law of the Sea (UNCLOS). This panel will have the power to order the release of the Arctic Sunrise as a preliminary measure, or if it is not constituted within two weeks the International Tribunal for the Law of the Sea will have jurisdiction to hear the prompt release case (Article 290(5), UNCLOS).

I, perhaps rather rashly, previously noted that the Russian reservation to the UNCLOS dispute settlement mechanism might pose problems to such proceedings. (The reservation purports to exclude disputes arising from certain categories of law-enforcement action.) What follows is (mostly) an explanation of why that is likely not the case.

A health warning, however: this is a long and rather technical post.

Read the rest of this entry…


Could Australia Follow a US Lead on Maritime Interdiction of Migrants?

Published on August 19, 2013        Author: 

As an Australian citizen living abroad a depressing feature of current electoral politics at home has been the race to the bottom on policy for asylum-seekers arriving by boat to Australia. The reasons for which the new policy of summarily deporting all boat arrivals to Papua New Guinea for refugee processing and resettlement are contrary to Australia’s international obligations have been ably articulated by Ben Saul and others.

However, an allied issue in the boat people debate has been the feasibility of “stopping the boats” at sea. The leader of the Coalition opposition, Mr Tony Abbott, has claimed “it’s standard naval practice to intercept and turn around boats on the high seas,” and Coalition policy has also reportedly “annoyed Indonesia by insisting Jakarta is open to talking on turning back boats when it most definitely is not”. Nonetheless, Mr Abbot has suggested that the “US Coast Guard has been turning boats around in the Caribbean for years” and that this points to maritime interception as a viable policy option.

So does US Coast Guard migrant interdiction provide a model Australia could adopt? In my view: no. The US Coast Guard does intercept thousands of migrants at sea every year from Cuba, Haiti and the Dominican Republic, but only under a very different operational and legal framework to that being proposed in Australia. Read the rest of this entry…


Piracy on dry land (now with added case law)

Published on July 5, 2013        Author: 

Flag_of_Edward_England.svgIt’s nice when a court agrees with you, or comes to the same conclusion at least. In a previous post on US v Ali (here) a spirited debate broke out in the comments as to whether Article 110(c) of UNCLOS on intentionally facilitating piracy was restricted to the high seas or could apply on dry land. (credit for image, Flag of Edward England)

We now have an appeal decision holding the defendant in US v Ali can be charged with aiding and abetting piracy on the basis of acts committed within Somali territory without this being contrary to international law.

There is a potential wrinkle here, in that the logic appears to be that the US law on aiding and abetting piracy (i.e. as an accessory) can extend to acts ashore as international law allows States criminal jurisdiction over such acts as piracy (i.e., commission of the offence in Art. 110(c) means you have committed piracy as a principal). Thus Art. 110(c) creates a form of piracy per se that US law can only charge as aiding and abetting (a different form of) piracy.

I don’t think anything turns on this. If universal jurisdiction over piracy is permissive, it is up to States to work out how best (or whether) to criminalize the offences under their national law. The point is that national law not exceed the limits of that jurisdiction.

On other points, the reasoning in the decision sets aside most of the historical material commonly relied upon in these debates in favour of a plain words interpretation (an issue I’ve discussed over here).

I doubt this will be the last case on point, so it will be interesting to see what other courts and other jurisdictions make of this.


Political Motivation and Piracy: What History Doesn’t Teach Us About Law

Published on June 17, 2013        Author: 

I’ve been meaning to write for some time on the debate caused earlier this year by the ninth circuit of the US Federal Court decision in Institute of Cetacean Research v Sea Shepherd. Somewhat controversially it held that political protesters, if they crossed the line into violent protest, could commit piracy. The point is controversial because piracy is defined under the Geneva Convention on the high seas and the UN Convention on Law of the Sea (UNCLOS) as being an act of violence committed on the high seas by a private vessel against another vessel “for private ends”, a requirement often taken to exclude “political ends”.

The decision has drawn different reactions in the international law blogosphere. Eugene Kontorovich thinks the court got it right (acts not sanctioned by a State are private); Kevin Jon Heller is convinced that the court got it wrong (politically motivated acts are not private).* Whenever debates about the meaning of words in the treaty law definition of piracy break out, academics are irresistibly drawn to the work of the International Law Commission (1955-6), the earlier Harvard codification project (1932) and –occasionally – the even earlier work of the League of Nations (1926) on the topic. The point of this brief note is to suggest that when it comes to those historical materials, we lawyers often greatly overestimate their usefulness.

To begin at the beginning, where do these hotly contested words “for private ends” come from?** They do not in fact appear in any of the historic case law. Justice Story conducted a wide ranging review of the historic sources in a famous 18 page long footnote in the 1820 case US v Smith. Read the rest of this entry…

Filed under: EJIL Analysis, Piracy

Nicaragua v Columbia: the curious question of the Commission on the Limits of the Continental Shelf

Published on December 10, 2012        Author: 

Continental shelf questions have a reputation for being arcane and technical, but an interesting point with implications for offshore resource disputes arose in last month’s ICJ judgement in Territorial and Maritime Dispute (Nicaragua v. Colombia).

First, a certain amount of (potentially dull) technical background needs to be set out, which I’ll simplify as much as possible.

Notably, Nicaragua is a party to the UN Convention on the Law of the Sea (UNCLOS) and Colombia is not. UNCLOS in Article 76(1) states a general principle:

The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to [an automatic] distance of 200 nautical miles from [its] baselines.

This 200 nm or “the outer edge of the continental margin” general definition of the limits of the continental shelf was always likely to be found to be customary international law – and now the ICJ has determined that it is (para 118: correct me if I’ve missed an earlier case). Read the rest of this entry…

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Drug trafficking at sea: no longer a crime of universal jurisdiction before US Courts?

Published on November 22, 2012        Author: 

Once again, a new maritime drug smuggling case raises interesting questions of international law and its implications for national prosecutions.

Back in 2010 I blogged on Medvedyev: a European Court of Human Rights case finding that an ad hoc agreement between France and Cambodia was an insufficient legal basis for France to prosecute drug smuggler. The agreement for France to board the vessel and assume jurisdiction over the offences discovered was concluded by diplomatic note and valid at international law, but it was a defective basis of jurisdiction in European human rights law because (inter alia) it lacked a required quality of “foreseeability”. (That is, the Cambodian nationals in question could not have predicted they would become subject to French law).

In more recent developments, I am grateful to Ilias Bantekas for drawing to my attention the US Court of Appeals (11th Circuit) decision in US v Bellaizac-Hurtado (6 November 2012).

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