What states should do to resolve the current “High Noon” scenario in the South China Sea: “bombard the headquarters” in Beijing with international law claims

by Jerome Cohen

Spratly Islands, South China Sea, by Storm Crypt.

The US began on October 27th its first freedom of navigation operation (FONOP) near China’s man-made islands in the South China Sea. This whole exciting story would be seen for the comic farce it is were the situation not so dangerous.

The US and China have put forth some legal claims with regard to their rights in the South China Sea. But neither major contender takes the obvious step to have the claims determined by the world’s greatest impartial experts in the subject. Although the US, by failing to ratify the United Nations Convention on the Law of Sea (UNCLOS), has deprived itself of the possibility of bringing an UNCLOS arbitration against China, as the Philippines has brilliantly done, it could offer to take the dispute to the International Court of Justice, where both Washington and Beijing have able judges, or to an ad hoc arbitration tribunal agreed to by both parties.

China has got itself out on a long and shaky limb. Its claim to “sovereignty” over these low-tide elevations is preposterous. Even if it had a plausible claim to these features as its “territory” and thus to a territorial sea around them, under UNCLOS (not China’s unilateral domestic law) it would still not be allowed to bar even warships from “innocent passage”, i.e., passage that is consistent with the detailed UNCLOS rules.

To be sure, the US makes no territorial claim for itself regarding sovereignty over the reefs in question, but it does apparently reject China’s claim and any claim by others that low-tide elevations can become the “territory” of any state. The US, as I have often said, should accompany its current bold gesture of using the fleet to protest China’s provocative over-reaching by also resorting to more conventional peaceful means of settling disputes through arbitration or adjudication.

We should also be persuading other states, including Japan, to “bombard the headquarters” of the CCP in Beijing, not with missiles but with missives daring the PRC to test its international law claims before tribunals of the world’s leading impartial experts.

Timing is everything in life, and my minimal hope is that the current “High Noon” scenario in the South China Sea will build slowly enough to be overtaken in a few months by the UNCLOS arbitration decision in the case brought by the Philippines against the PRC two and one-half years ago (see the October 29 UNCLOS Tribunal ruling to proceed to the merits of some claims and reserves the question of jurisdiction for others). Whatever the tribunal decides should shake up the current situation.

Who gets punished?: Sons and daughters of rights lawyers - Collective punishment in China

by Jerome Cohen

Wang Yu and her son Bao Zhuoxuan, Photo courtesy of Bao Zhuoxuan

Wang Yu, a leading rights lawyer detained in July during a large-scale crackdown on lawyers, must be under greater pressures than ever. Not only is she detained, but also her teenage son Bao Zhuoxuan has been prevented from leaving China to study abroad. When the boy tried to escape China days ago, he was caught in Myanmar and brought back to the country. Chinese media now claim that this is “a plot by external forces, who forcibly drew a minor into the vortex of politics and used the case to vilify China's rule of law.” Wang Yu, detained for more than three months now, appeared on state TV to condemn the supposed smuggling of her son (See Verna Yu’s report here). Meanwhile a son of another prominent rights lawyer, Liu Xiaoyuan, has also been denied permission to leave China to pursue an overseas education.

There is no doubt that in fact, not in formal law, the Chinese Government has been resorting to collective punishment of the family members of those it regards as political offenders. Indeed, the People’s Republic has been doing this for a long time in order to punish people it deems to be dissidents and to force them to “confess” to alleged crimes they have not committed.

Such formal collective punishment was abolished over a century ago in China as part of reformers’ efforts to bring Qing dynasty justice up to the standards of the Western imperial powers and end the incubus of “extraterritorial” foreign jurisdiction. Yet it persisted in practice under China’s post-imperial, pre-Communist regimes. Chiang Kai-shek’s government continued to secretly mete out collective family punishment on Taiwan. Many still recall how Kuomintang (Nationalist Party) police even killed the children and mother of a distinguished Taiwan independence advocate while he was in prison.

Is collective punishment happening more often in the PRC today than in the past? It’s impossible for outside observers to know. Surely the Internet and social media keep us better informed than in the past.

The authorities evidently think it is an effective tool, since it can transform even the most courageous dissident into the Communist Party’s compliant victim.

This vicious practice may soon backfire, however, since knowledge of its use is increasingly widespread and leaves in tatters any further attempt by the Xi Jinping regime to resort to “soft power”. I am glad Xi’s daughter had the opportunity for a Harvard education. It is a disgrace that he so often denies this opportunity to the children of so many worthy citizens.

When are Donations to Universities Unacceptable?

by Jerome Cohen

(Matthews Hall, Harvard Yard, Photopin)

Harvard has announced that it’s going to set up a new research institute in Shanghai. The institute is being funded by a donation from Wang Jianlin, the chairman of the Wanda Group, which according to this New York Times report, has financial ties with members of the most powerful families in China. This has raised the issues of whether Harvard should accept the donation and more broadly what sources of funding should be acceptable to universities and under what conditions.

These problems frequently arise at the elite schools, Harvard prominent among them. Some donations seem simply wrong and others are plainly angelic "no brainers". The rightness of many others turns on various specifics - eg, the donors, the purposes, the conditions if any, etc.

Having taken part in some fundraising, I know these are often not simple matters, and respectable arguments can frequently be made on both sides. At Harvard I raised money from many sources. Eg, the US Government Arms Control & Disarmament Agency. Should that grant to study Chinese policy and international law have been rejected because of the abominable misconduct of the US Government in any number of places including Vietnam, Chile, Iran etc? Should a grant from Mac Bundy at the Ford Foundation to study Vietnam's legal history have been rejected because Bundy had moved there following his White House years helping to mastermind the destruction of Vietnam? (And Henry Ford, the progenitor, was, of course, an anti-Semite.) Should a professorship of Japanese law to be established by the Mitsubishi Group at Harvard Law School have been rejected because periodically some member of the group is charged in some country with violation of antitrust, trade or even criminal laws?

In those three cases I thought the circumstances warranted acceptance, although I told Mitsubishi that we could not use their name for the professorship and they agreed. Later, after I left Harvard, somehow the name came into use regarding the chair.

A more interesting problem arose when I was invited to go to Japan by the Sasakawa Peace Foundation to give a public lecture in January 1975, probably because I had been openly critical of the Tanaka Government on the grounds of corruption and human rights in its actions at home and in relation to South Korea. I got to know my host during the few days he spent with my wife and me traveling around Japan, and it became clear that he would be willing to make a huge donation to Harvard Law School to support our East Asian research program. Mr. Sasakawa, who made a fortune as the king of motorboat racing, was in the midst of a sustained effort to do good deeds that might overcome his earlier reputation as a war criminal. When I returned to Harvard, I consulted my wise senior colleagues Fairbank and Reischauer as well as the young law professors from Japan who were either visiting scholars or grad students at Harvard Law School. Neither Fairbank nor Reischauer opposed the idea and they seemed to implicitly endorse it. Fairbank, a great supporter of research in East Asian law, said with a smile: "Harvard sanitizes money by accepting it". The Japanese law scholars, on the other hand, were adamantly opposed because of Sasakawa's record as a war criminal. One whom I respected greatly said: "No one from Japan will want to study here if you take his money." With considerable reluctance, I turned the opportunity away. Not long after, Sasakawa gave about US$10 million, real money in those halcyon days, to the UN Population Fund at the request of Robin Duke, one of the world's most charming women, who, with her husband, Angier Biddle Duke, had been courting Sasakawa at the same time we were there and who gave me the idea of trying to hit our host for a major gift. Was I right?

A few years after the Sasakawa incident, many in Cambridge were outraged when the Fletcher School accepted a chair from the Marcos Government in the Philippines. I took part in the protest and think I wrote a letter to the Boston Globe asking whether it would be called "The Ferdinand Marcos Chair in Human Rights". In any event, Fletcher soon decided to return the gift.

Why China chose the German instead of English legal system: the role of Japan

Here is an interesting op ed that paints with a very broad but interesting brush on "Why China chose the German instead of English legal system".

Photo by Photopin

It omits any reference to the intermediate role of Meiji Japan, which chose Germany as a model over France and England in large part because of the allure of the Bismarck model. Many Chinese reformers were influenced by Japan at the end of the Qing, As the greatest law reformer of the era, Shen Jiaben, put it: “When we use Japan as a mirror and look correctly, then there can exist no doubt or hesitation”. Shen held manyimportant positionsbefore the Qing fell and became Yuan Shikai’s Minister of Justice in 1911, but did not continue in office after establishment of the Republic and died soon after. Japanese law teachers and other legal experts played an important role in China both immediately before and after the Revolution. Japan was admired because it was seen to have built its impressive power on the strength of its modern legal system, which was given a good deal of credit for enabling it to defeat not only imperial China in 1895 but also a perceived “Western” nation, imperial Russia, a decade later.

The struggle of Chinese public interest lawyers to have their voice heard by their lawyers associations

by Jerome Cohen

According to this report, some public interest lawyers in China are now calling for abolition of the national lawyers professional group, the All China Lawyers Association, which is organized and controlled by the Ministry of Justice and has rarely lent support to lawyers attacked by the government.

In fact, there were efforts in the past to try to reform the lawyers associations in China, such as calls by some public interest lawyers in 2008 for the Beijing Lawyers Association to hold direct elections, in the hope of making the group more autonomous (see Jerome Cohen, "The Struggle for Autonomy of Beijing’s Public Interest Lawyers," April 2009). Obviously, the struggle is still ongoing today, especially given the current severe crackdown in which the local and national lawyers associations have not only remained silent but also continued to aid the government, for example, by not renewing the license to practice law of some lawyers unwelcome by the authorities. 

South China Sea Disputes: Lawfare instead of Warfare!

by Jerome Cohen

Spratly Islands, South China Sea, by Storm Crypt.

The US Navy is preparing to send a ship inside the 12-mile territorial sea China (the PRC) reportedly claims for its controversial man-made island chain in the South China Sea, according to this report. 

To defuse the rising tension in this area, the US and other countries should resort to international legal institutions, rather than warfare.

The US Senate should seize the opportunity presented by the heightened public interest in the Law of the Sea to finally ratify US adherence to The United Nations Convention on the Law of the Sea (UNCLOS). It would give us greater credibility by subjecting our country to the same dispute resolution constraints that all state-parties to UNCLOS, including the PRC, are legally bound to accept, and it would offer us what we are now denied – the opportunity to challenge PRC maritime claims before an impartial arbitration tribunal, as the Philippines has done.

The value of this opportunity should not be underestimated even if the PRC continues to formally thumb its nose at Manila’s challenge (while seeking to answer it outside the tribunal’s jurisdiction). I do not think most observers appreciate the momentous nature of the Philippine case, which seems to be coming to a head more quickly than previously anticipated. The tribunal’s decisions on jurisdiction and perhaps at least some of the substantive issues have the potential to be a game changer in an increasingly dangerous and uncertain situation. 

All the countries concerned with PRC maritime assertiveness need to respond to the South China Sea crisis with greater collaboration. But, in addition to focusing on political/military gestures, they should be “bombarding the headquarters” in Beijing with international arbitration and International Court of Justice (ICJ) claims that will test the PRC’s actions before respected international legal institutions.

Any hopes Beijing may have for “soft power”, already blocked by its domestic legal misconduct, will be obliterated if the world community condemns it for rejecting itsUNCLOS obligations re maritime issues and the ICJ or ad hoc tribunals for deciding territorial disputes. Only active collaboration by the various countries involved can bring these peaceful ways of settling disputes to the attention of Xi Jinping himself and stimulate reconsideration of the PRC’s current course.

Unfortunately, until now, although there is strong potential support in each of the relevant countries on China’s eastern and southern periphery for lawfare instead of warfare, each finds political reasons for passivity and avoiding Beijing’s wrath in the hope that the Philippines will be successful.  In the meantime, the PRC has been quietly using every means possible to terminate the Philippine effort before the tribunal reaches what may be a damaging decision for Beijing. Time is a factor here since there will be a new Manila administration by mid-2016, and the PRC’s blandishments and pressures might prove more effective with the new Manila power-holders than with the current government, which has already felt and thus far resisted their force. 

Johannes Chan appointment rejected by Hong Kong University Council: A Scandal

Originally posted on September 29, 2015 (reposted on September 30 due to technical issues)

by Jerome Cohen

The Hong Kong University Council has voted to veto the appointment of pro-democracy scholar Johannes Chan Man-mun as pro-vice-chancellor. This is very sad news for Hong Kong’s autonomy and freedom. “Zhengzhi guashuai (政治掛帥)” is a slogan frequently invoked in the Mainland, but it is tragic to see “Politics in Command” in Hong Kong’s educational sphere. The Council is hiding behind the fig leaf of confidentiality and privacy because it cannot afford to be transparent and give the reasons for its decision. This is a scandal!

• Related: Jerome A. Cohen & Alvin Cheung, Delay in HKU appointment of Johannes Chan makes a mockery of Beijing's pledged support for rule of law, South China Morning Post, September 25, 2015

Remarks for the opening of "Aboveground—40 Moments of Transformation” -- A photography exhibition of young feminist activism in China

Jerome Cohen's video remarks for the opening of "Aboveground—40 Moments of Transformation” -- A photography exhibition of young feminist activism in China

Cohen says, "It's hypocritical to have Xi Jinxing and his wife speak out about women's rights (at the UN) after what they have done to many women activists and women lawyers in China, especially the Feminist Five, who although no longer are held in jail, but still under important constraints. Receiving "Qubao houshen," a bail arrangement, that requires them for one year to stay wherever they're located and to report regularly and to restrict what they say as well as what they do is really a disgrace to China. It's a restriction on freedom of expression and personal freedom that the Chinese government should cancel. I hope that seeing these wonderful photographs and in meeting together, we can gain further sustenance and support for continuing effort to support women's rights, women lawyers in china, human rights activities and the role of legal profession generally."

Can the Press get Chinese President Xi Jinping to answer an impromptu question?

by Jerome Cohen

Chinese President Xi Jinping arrived in Seattle on Tuesday for his first state visit to the US. Now that he is in America, can the press ask him unscripted questions? In fact, these visits from PRC leaders are staged to avoid direct, unapproved questions. Things are generally scripted to go smoothly and “avoid offense”. Yesterday’s WSJ interview, in writing (English, Chinese), is generally the best one can get, and that is a coup. Even his dinner hosts will find it hard to find a moment for a real conversation. Former Prime Minister Zhu Rongji was a rare exception because he could field public questions, even in English, and often gave bold, off the cuff answers.

Guo Yushan (郭玉閃) "released" prior to Xi Jinping's visit to the US

by Jerome Cohen

Less than ten days before Xi Jinping's visit to the US, scholar Guo Yushan (郭玉閃) and his colleague He Zhengjun (何正軍) have been released after almost a year’s detention (see the SCMP report here). Guo is now placed under "qubao houshen (取保候審)" (obtaining a guarantee pending further investigation), which is often a face-saving device for the Chinese authorities if they want to release someone during investigation. 

This form of “release”, while not as severe as “home confinement”, means that for one year the released people are under various constraints including continuing stigma although they have not been found guilty of anything or even prosecuted. They cannot leave their city without police approval, they have to report regularly on their activities, they are often shadowed and can be taken back into custody and prosecuted at any moment. The police often silently drop the case at the end of the year unless they come up with evidence, but unauthorized surveillance often continues. Plainly, this is very different from a true release and termination of police interference with one’s life. 

Guo Yushan (photo by BBC中文網)

Guo is a great person. He found himself in the public eye after his role in rescuing the blind barefoot lawyer Chen Guangcheng became known, but in fact he's done much more than that. His research NGO, the Transition Institute (傳知行), has conducted a lot of good studies on social issues. As the Transition Institute was already shut down by the authorities, and Guo is now under "qubao houshen", it’s unlikely his research work can continue.

Threats to academic freedom in Hong Kong

Jerome Cohen

Here is an article by David Matthew today on how Hong Kong academics critical of Beijing have been put under pressures, subtle or flagrant. It reports, “Press attacks and council control…have been the weapons of choice against the most prominent academic figures in Hong Kong’s pro-democracy movement. But some believe that the highly politicised environment in Hong Kong is also beginning to affect the climate for day-to-day teaching and research.”

Johannes Chan Man-mun (Photo by Voice of America Tang Huiyun, 美國之音湯惠芸)

This further development is disturbing. The current struggle over the appointment of former law school dean Johannes Chan as pro-vice chancellor at University of Hong Kong is a more visible litmus test. HK is no longer a safe haven for holding conferences or even informal exchanges with scholars and lawyers from China, as again illustrated by today’s news that five Mainland human rights lawyers have just been stopped from leaving for HK.

On his impending visits to the US and UK, Xi Jinping should be questioned on every occasion about this as well as his vicious repression of human rights lawyers, IF any of his hosts – official or unofficial – have the wit and guts to insist on allowing unscripted questions.

Today’s very moving BBC interview with the wife of LI Heping, a genuinely great human rights lawyer and friend, only adds fuel to what may become a bonfire. Xi Jinping is evidently putting into practice his belief that China should be guided by the ancient dictatorial philosophy of its notoriously repressive Legalists rather than by the “universal” legal values reflected in the 25 international human rights documents to which his predecessors voluntarily committed the PRC. Beijing’s new slogan for governance might be “Leninist Legalism”. Or should it be “Legalist Leninism”? 

The ABA's statement about the crackdown on lawyers in China

The recent crackdown by the Chinese government on human rights lawyers has raised the question of what is an appropriate response by foreign organizations working on the rule of law in China. The statement released by the President of the American Bar Association on August 4 has further prompted such discussion as well as frustration of those who want to see a stronger statement of the ABA in support of China’s beleaguered lawyers, as in this op-ed by Robert Precht in the Washington Post.

Below are some thoughts of Professor Jerome Cohen about the ABA statement and the broader question of what considerations foreign organizations, including bar associations, universities and NGOs, have when they think about how to respond to the recent challenge.

Jerome A. Cohen

August 4, 2015

First of all, I am impressed by how little interest has been expressed in the ABA statement. Perhaps it’s the mid-summer doldrums and holiday schedules, perhaps many people feel what the ABA says is of little significance in influencing the PRC to cease its attack on human rights lawyers, and perhaps there is little appreciation of the importance of human rights lawyers and the Party’s attack on them.

The ABA statement does not meet my standard for what would have been appropriate. I had helped draft a stronger statement, yet one that also emphasized the ABA’s hard work over the past 17 years and the importance of continuing, indeed expanding this effort with the support of some of the other lawyers’ organizations that condemned the PRC purge. Some of the language of our draft is in the compromise final draft decided upon by the ABA president.   I think the final statement is adequate since it shows the ABA is not happy with what the PRC is doing, which is a lot more than the original draft produced by the staff of its Rule of Law Initiative did. So I think the statement is helpful, since it adds to the protest the voice – however timid – of one of the world’s greatest bar organizations. Of course, even the outpouring of protest is not likely to be helpful in the sense of persuading XJP to call off the hounds, but it surely is helpful in supporting the victims and their colleagues and families and the hundreds of thousands of Chinese legal officials, judges, prosecutors, lawyers, legislators, law professors, journalists and activists who have been coerced into suffering this abomination in guilty silence. It is also helpful in letting the American legal profession and general public know more about reality in China today.

ABA's logo on its website: americanbar.org

It would be painting too quickly and with too broad a brush to say the mild ABA response is a result of meretricious, mercenary motives on the part of law firms, universities, or NGOs.  Individual American law firms with offices in China or otherwise engaged in China practice have never shown the slightest interest in human rights problems. That surely is for business reasons. Yet bar associations have often been active regarding PRC transgressions as well as those taking place in many other countries. I am glad to say the NY City Bar has in this case, as in many others, made its condemnation loud and clear, n Chinese as well as English.  The Hong Kong Bar Association, whose opinions really carry some weight in China, is terrific in this respect.

The situation with universities has its own characteristics. Universities and their centers and institutes seldom go on record as institutions condemning Chinese human rights violations, but many individual faculty members and research scholars do express themselves even while many keep silent for their own good reasons. I do not think that the failure of universities and centers to speak out can generally be attributed to concerns over loss of money, although some might suffer financial consequences from doing so. I think there are other explanations readily available, some reflecting worthy considerations and some not (does visa denial constitute primarily a monetary concern?).

NGOS also need careful analysis. Human rights NGOs that cannot set up shop in China have no hostages to fortune. Those like the ABA that have labored long and hard in China, with some staff devoting their lives to this kind of work, have a lot to lose if their protests lead to their ouster and the closing of their office. That was the principal articulated consideration motivating those within the ABA who preferred no statement or one that would have been ludicrous in the eyes of the world. Of course, one can say that their view too is based on money since their jobs and funding could be cut off by a hostile PRC reaction, but I think that a genuine zeal for law reform and a belief that their efforts have already produced tangible progress and will in the long run bear greater fruit was their primary motivation. Concern was also expressed that a strong statement might lead the PRC to impose sanctions against the persons of their American and especially Chinese staff in Beijing, an idea that seemed to carry weight with some within the ABA who know little about China.

So ABA leaders were called on to balance conflicting considerations, essentially to balance the speculative consequences of a strong statement against the less speculative consequences of failing to meet the challenge, including the ongoing but impossible to stop attack on China’s human rights lawyers and the damage to ABA’s reputation. Hence the compromise. Many ABA lawyers were undoubtedly unhappy with the outcome, judging by their words and votes during various group discussions. I know nothing about ABA practices and procedures but what I witnessed from afar (I did my pro bono consulting by phone, skype and email from the soothing beaches of Cape Cod!) made me think a bit of law reform is overdue within the organization!

A SEPTEMBER 7 POST-SCRIPT: The ABA’s dilemma has surely not ended. Public criticism has begun to rise at summer’s end. Some within the organization are properly calling for further consideration in a special meeting. There is already an effort under way to persuade the ABA to seek to add to the agenda of its long-scheduled November conference with Communist Party-controlled Chinese lawyers a discussion of the current repression of human rights, public interest and criminal defense lawyers.