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Home Posts tagged "China"

Look before you leap: the 2019 extradition bill amendments in light of Hong Kong’s international human rights obligations

Published on July 25, 2019        Author: 

On the first day of July, Hong Kong celebrates Establishment Day, which commemorates the 1997 transfer of sovereignty over Hong Kong from the United Kingdom to the People’s Republic of China. Establishment Day for Hongkongers is customarily accompanied by political protests. The widely reported 2019 protests are the direct result of a proposed amendment to the Fugitive Offenders Ordinance (‘FOO’). The proposed amendment, if passed, would open up the possibility of extradition to mainland China.  Although the proposed amendment was declared “dead” by Hong Kong’s Chief Executive, Carrie Lam, there is real possibility that, at one point or another, the bill will be reincarnated since under Hong Kong law a bill can be suspended or withdrawn and it is not clear that the declaration declaring it dead does either of these. As a result, people have kept pouring into the streets calling for Carrie Lam to step down, making the issue of continuing relevance.

One major point of contention of the proposal concerns the protection of human rights of those subject to transfer to China. NGOs such as Amnesty International and Human Rights Watch point out China’s deplorable human rights protection. While the PRC’s poor human rights track record has been documented extensively, in this contribution I wish to clarify how the amendment bill could result in a situation in which Hong Kong incurs responsibility under international human rights law – in particular article 7 ICCPR – when extraditing persons to the PRC. I do so by first discussing the proposed amendments to the FOO. Second, by explaining the international human rights standards that govern extradition and by which Hong Kong is bound (mainly the torture prohibition), I show how the proposal lacks the safeguards necessary to ensure adequate protection against torture and inhuman and degrading treatment.

Proposed amendments to the Fugitive Offenders Ordinance

The government’s justification for tabling the FOO amendment proposal lies in a brutal 2018 murder case in which a Hong Kong man killed his girlfriend while vacationing in Taiwan and fled back to Hong Kong. The Taiwanese authorities, quick to connect the dots, issued an extradition request to Hong Kong, but received no reply. The absence of action on the part Hong Kong can be explained by two alleged loopholes in the FOO: Read the rest of this entry…

 

The Legal Status and Characterisation of Maritime Militia Vessels

Published on June 18, 2019        Author: 

A recent report has described how Royal Australian Navy helicopter pilots were targeted with lasers during a night flight in the South China Sea. The lasers were allegedly directed from Chinese fishing vessels – the primary cadre from which the so-called Chinese ‘maritime militia’ is drawn. Further, the incident occurred – according to another report – shortly after a US admiral warned that the paramilitary force could be treated as ‘combatants’. 

What is the Chinese maritime militia? As described below it is a hybrid body (or bodies), but in essence it is a civilian reserve force (often of fisherman) capable of being called upon to conduct military or governmental activities. A number of recent official reports (eg, US, and Japan), have specifically commented upon the rise in China’s employment of this force multiplier in the South and East China Sea regions. At a certain level such a force may be benign, called upon to assist in search and rescue efforts. The concern, however, is that militia vessels are also being used to further Chinese strategic claims in disputed waters by – for example – harassing the fishermen of other states – including by sinking their vessels, as is reported to have occurred with a Philippines fishing vessel just a few days ago. In another episode, Chinese fishing vessels formed a cordon around Chinese oil exploration vessels operating off Vietnam.

The concept of a ‘maritime militia’ is relatively recent, but not without historical parallel. There has long been (and remains) well settled law around the practices of privateering, use of merchant vessels as auxiliaries to naval forces, and conversion of merchant vessels into warships. In this post, however, I will briefly outline two status and characterisation challenges ahead – or rather, already with us – presented by the increased use of maritime militia by China in the current geo-political and legal context: The status and characterisation of militia vessels under the United Nations Convention on the Law of the Sea (UNCLOS) and the customary law of the sea; and their status under the Law of Naval Warfare (LoNW). Read the rest of this entry…

 

The China-Japan and Venezuela-Guyana Maritime Disputes: how the law on undelimited maritime areas addresses unilateral hydrocarbon activities

Published on January 25, 2019        Author: 

In December 2018, two incidents brought to the fore the importance of the rules addressing activities in undelimited maritime areas.  The first incident occurred between China and Japan in the East China Sea, and the second took place between Venezuela and Guyana in the Atlantic Ocean. Whereas the establishment of maritime boundaries is the optimum choice when it comes to the creation of a stable and secure environment for the conduct of maritime activities, the UN Law of the Sea Convention 1982 (‘LOSC’ or ‘the Convention’) provides for the regulation of operations even in the absence of maritime delimitation. With a view to avoiding tension, Articles 74(3) and 83(3) LOSC impose two obligations upon states having overlapping entitlements/claims in a given undelimited maritime area. This post scrutinises the behaviour of the parties involved in the aforementioned disputes through the lens of the LOSC.

The factual background

On the 3rd of December 2018, Japan protested China’s deployment of a jack-up rig and the drilling of boreholes near the provisional median line between the two states in the East China Sea. In response, the Chinese Ministry of Foreign Affairs stated that China was carrying out hydrocarbon activities in waters falling within its jurisdiction and that it does not recognise the provisional median line with Japan.

It is worth mentioning that China has been engaged in hydrocarbon activities in the area since 2003 (a deal on the establishment of a joint development zone reached in 2008 has not been implemented). Furthermore, it is recalled that in 2014 China performed unilateral oil and gas ventures in an undelimited maritime area within 200M of the coasts of Vietnam, triggering the latter’s vehement reaction. China had attempted to justify its activities back then by invoking its claims according to the ‘9-dash line’, a claim which was put in doubt by the Award of the Arbitral Tribunal in the South China Sea (Philippines v China) case (2016). Read the rest of this entry…

 
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Was the UN Human Rights Council Wrong to Back China’s “Shared Future” Resolution?

Published on April 10, 2018        Author: 

On March 23rd, the 37th session of the UN Human Rights Council adopted a resolution (A/HRC/37/L.36) introduced by China, calling for “mutually beneficial cooperation” among states to promote human rights, with “the aim of building a community of shared future for human beings.” The vote was contested, with 28 states voting in favor, 17 abstaining, and one, the United States, voting against the motion. There has also been considerable criticism by legal experts and political officials in the West, who have argued that China’s resolution is an attempt to indirectly excuse its own rights lapses or to dilute the idea of international monitoring.

The substantial opposition, or at least discomfort, with the resolution seems somewhat inconsistent with the general thrust of the text, which consists largely of affirmations of the importance of human rights and endorsements of existing UNHRC practices and procedures. However, two aspects of the document (aside from the dissonance between rhetoric and practice) have been identified as problematic by critics. The first is the apparent focus on “state to state” obligations rather than on individuals as the focus on international human rights law, and the associated invocations of “cooperation” and “multilateralism” as opposed to “unilateral” critique. The second, and as I will argue the less convincing of these criticisms, is that by giving international endorsement to China’s “community of shared future” concept, the UNHRC is being made a vehicle for ideological propaganda of the Xi Jinping administration.

Dividing Positions from Practice

There are reasons to take the first ground of critique quite seriously. There is no question that China has historically sought to shift focus from individuals as rights-bearers to the rights and obligations of states, as well as to avoid external criticism for its rights record. It has opted out of optional protocols that establish individual complaint mechanisms in international human rights treaties and has, for example, issued reservations to Article 20 of the Convention against Torture allowing confidential inquiries by the Committee of the CAT. In terms of its practice on the UNHCR and in other UN human rights contexts, it has by various means discouraged NGOs and individuals from engaging with reporting mechanisms, rising to the level of harassment or detention of civil society members seeking to do so. In one of the more infamous such cases, the activist Cao Shunli, who sought to participate in China’s Universal Periodic Review in 2013, was apprehended by police at Beijing’s airport and then detained for several months—only to die while in custody, allegedly due to refusal of state security agents to provide medical care for several long-term illnesses. Read the rest of this entry…

 
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Russia and China Challenge the Western Hegemony in the Interpretation of International Law

Published on July 15, 2016        Author: 

On 25 June 2016, the Presidents of Russia and China adopted a common Declaration on the Promotion of International Law in Beijing. The Declaration has already been subject to insightful commentary in the Western blogosphere, for example by Ingrid Wuerth.

The context of the Declaration is that both Russia and China have recently faced criticism for their attitudes towards, and even violations of, international law. In March 2014, the majority of states in the UN General Assembly considered Russia’s annexation of Ukraine’s Crimean Peninsula illegal under international law. On 12 July 2016, about two weeks after the Russian-Chinese Declaration was adopted, the Permanent Court of Arbitration in a case initiated by the Philippines, de facto rejected most of Chinese territorial claims in the South China Sea.

In this sense, the Russian-Chinese Declaration represents a defensive political document in which the signatory states reject Western suggestions that the two UN SC permanent members have a somewhat problematic relationship with international law. Within the Declaration, Russia and China offer their own interpretation of what the big picture of international law is – an interpretation according to which it is the West, especially the US, that emerges as an actor displaying a problematic record and attitude. It is important that the two powers have now officially come together to put forward a common interpretation on the big picture of international law. At least in Russia, strategic criticism of the Western approach to international law has been prominent in strategic documents for the last ten or so years.

One has to keep in mind that the discourse on international law within Russia and China differs considerably from the way it is typically understood and constructed in the West. However, the realization of this fact is not necessarily too deep in the West where at least academic discourse on international law is usually carried out as an intra-Western affair i.e. Western experts debating with other Western experts. Outside the West, international law is often portrayed as an hegemonic tool of the West. For example, in April 2016, the Director of the Investigative Committee of the Prosecutor General’s Office of the Russian Federation and a leading practitioner in international law matters in Russia, Alexander Bastrykin, made a statement according to which, international law has for a while been used as an element of Western hybrid warfare against Russia. Read the rest of this entry…

 

China’s View of International Litigation: Is the WTO Special?

Published on November 13, 2015        Author: 

Yesterday, Geraldo Vidigal put up a really interesting post looking at recent patterns of use of the World Trade Organization’s dispute settlement system. One thing that was particularly striking to me was the extent to which China has participated in the WTO dispute settlement system given its previous position on resolution of disputes by international tribunals. Geraldo’s chart of the latest 100 disputes at the WTO shows that only the United States, the EU and Japan have initiated more cases at the WTO in recent years than China (with Japan initiating just one more case than China in this period). Given that the WTO system is the most widely used inter-state dispute settlement system, it might not even be an exaggeration to say that: in terms of numbers of cases brought before international tribunals by states, China is one of the most enthusiastic state users of international tribunals! Of course, that enthusiasm is only before one particular system.

In October 2010 I posted here on EJIL:Talk a piece titled “Is China Changing its View of International Tribunals?“in which I noted that China’s view on international tribunals more broadly seemed to be changing. At the time, I noted China’s participation in the Kosovo Advisory Opinion at the ICJ, which was the first time that the People’s Republic appeared in oral hearings before the ICJ. I also pointed out China’s participation, around the same time, in the written and oral phases of International Tribunal for the Law of the Sea’s (ITLOS) first advisory proceedings –  the Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber). In 2014, China submitted a substantial written statement in the Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC) though it did not take part in the oral hearings.

Of course, we have non-participation by China with respect to the United Nations Convention on the Law of the Sea Annex VII arbitration initiated by the Philippines (in respect of which the tribunal issued an award on jurisdiction a couple of weeks ago). Read the rest of this entry…

 
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OUP Debate Map on “Disputes in the South and East China Seas”

Published on February 7, 2014        Author: 

Readers interested in the territorial and maritime boundary disputes between China and her neighbours in the South and East China Seas will welcome the creation by Oxford University Press of a “Debate Map” on the topic. The  “Debate Map” is a valuable way of keeping track of scholarly commentary, in journals and blogs, on the range of issues related to those territorial and maritime disputes. It is essentially an index which categorises and:

maps scholarly commentary on the international law aspects of the conflicts in and around the South China and East China Seas, including maritime boundary disputes, the question of sovereignty over the Senkaku/Diaoyu islands, China’s recent announcement of an Air Defence Identification Zone, and the Philippines/China UNCLOS arbitration. It brings together primary documents with discussions in English-language legal blogs and a selection of journal articles.

Readers can “[u]se this map to review scholarly arguments and to keep track of which issues have been covered and who has said what.” OUP has also made available a range of online OUP materials on these issues (see the Oxford Public International Law Page).

The current Debate Map is the third such Map created by the Law team at OUP. The first was on The Use of Force Against Syria and was noted by John Louth here. The second on the Prosecution of Heads of States and Other Senior Officials at the ICC was discussed by Merel Alstein here. These debate maps are regularly updated and as Merel explains “aim to provide a quick overview of the relevant legal problems and controversies but also to create an archive of scholarship that can be referred back to  . . .”

 

Human Rights à la Chinoise: Impressions from the 6th Human Rights Forum in Beijing on the Eve of the Second UPR of China, Part II

Published on September 24, 2013        Author: 

The_Great_Wall_of_China_at_JinshanlingThis is the second part of a post on the Beijing Human Rights Forum held in September 2013 in anticipation of the upcoming Universal Periodic Review of China. Part I introduced the pending Review, described recent human-rights-related legal reform in China, and summarized governmental attitudes on human rights expressed at the Forum. (photo credit)

Voices against human rights universalism

The most vocal human rights relativist at the Forum was Lord Davidson of Glen Clova, House of Lords, UK, a former General Advocate for Scotland. He asked the question “Is it correct to regard human rights as universal?”, and answered it with a vigorous “no”, drawing on examples of prisoners’ voting rights, same-sex marriages, and the like.

Professor Li-Ann THIO from Singapore gave another powerful human rights-relativist talk. According to professor Thio, the goal should be human welfare, whether through human rights or other venues. The focus should be more on results, more on “doing good than on feeling good”. Professor Thio concluded with the question that she thought should be asked to everyone: Do you want the right to a house, or do you want a house?

The answer might seem obvious to rights-sceptics like THIO. But it merits two remarks: First of all, the realisation of most needs and wishes of personal life such as having a house, depends on complex economic, financial and political conditions. People wanting a house are completely dependent on those external conditions if they cannot at least have a say in shaping policies that influence them. Even with regard to the house itself, most people will prefer to decide for themselves whether they indeed want a house, or whether to spend their money first on the education of their children, or on world-wide travelling, for example. Some individuals who prefer non-settled living may indeed not even want a fixed house, and want to remain free to decide on their lifestyle.

Second and most importantly, people do not only want a house but they also want to be able to rely on their home and want to be sure that they cannot be simply evicted for the sake of some infrastructure project. This security is only given when they have a right to the house. In that sense, having a right to a house is an indispensable precondition of securely having a house.

The “putting the people first”-philosophy of the Chinese Government and the “Chinese dream”

The idea that a government should first of all provide a house (without necessarily granting a right to a house) is just one concretion of the Chinese Government’s philosophy of government for the people. In fact, a number of Chinese speakers highlighted the Chinese concept of “putting the people first”-philosophy. This appears to mean both that the group has a certain priority before the individual and also that the welfare of the people must be the objective of government, that “the state is for the people“, as HUANG Mengfu, Vice-Chairman of the National Committee of the 11th CPPCC, Chairman of the China Foundation for Human Rights Development, said. Besides, and somewhat in contrast, LI Junru, Vice-President of the China Society for Human Rights Studies said that “the dignity of the state is a precondition of dignity of individuals“.

The idea of a government for the people implies that a pure output-legitimacy of governance suffices. My objection would be that the outcomes are often controversial. Read the rest of this entry…

 
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