The US and the PRC are Oceans Apart on Many Law of the Sea Issues

By Jerome A. Cohen

Here is a very clear and helpful statement issued by the US 7th Fleet’s public affairs unit in Hawaii. Unlike some immediate media reports, it deals not only with the important innocent passage issue but also the even more often overlooked question of the PRC’s unjustified application of the UNCLOS straight baseline rules. Although not as detailed as a legal text, it is a clear, succinct explanation of the issues at stake. 

These are only two of the half dozen or so maritime questions that separate the US and the PRC. It would be good if the Biden administration could initiate bilateral or multilateral meetings with the PRC to try to reach some accommodation on these questions through horse-trading or otherwise.

I am not a law of the sea specialist. Perhaps that is why I have always been sympathetic to the argument that every coastal state should have the right to demand notice from any foreign warship that intends to ply its territorial waters and the right to reject its entry. Yet that is definitely not the UNCLOS rule, and I believe that the US, Russia and other naval powers permit foreign warship entry into their territorial waters so long as the passage is “innocent” as defined by UNCLOS. No notice or permission is required.

I feel differently about the UNCLOS rules that permit foreign air and naval reconnaissance from the further offshore Exclusive Economic Zone of the coastal state. Here I am less sympathetic to the PRC position, and this has been a more dangerous Sino-American disagreement than the innocent passage or straight baseline disputes thus far.

Of course, as China develops a more ambitious and far-reaching navy, it may be open to moderating its dissenting views on these issues. It already reportedly engages in its own EEZ reconnaissance elsewhere that is inconsistent with its claims against the US.

It will be important and interesting to see whether Vietnam and Taiwan react to these recent developments. I also hope that law of the sea experts will expound on this situation.

ASEAN Takes a Subtle Stance Against China’s Maritime Claims

By Jerome A. Cohen

On Saturday, ASEAN member states took a subtle but important step forward toward asserting the all-encompassing authority of the UN Convention on the Law of the Sea (UNCLOS) over PRC claims. UNCLOS, Beijing argues, despite the 2016 major contrary decision of the Philippine arbitration tribunal convened under UNCLOS that the PRC spurned, still leaves open the possibility of legitimate PRC claims to “historic rights” and a preemptive “nine-dash Line” in the South China Sea. Yet, without specific reference to the unanimous Philippine arbitration decision interpreting UNCLOS, which would have plainly infuriated the PRC, this new ASEAN statement, crafted by Vietnam but apparently acquiesced in by all ASEAN members, explicitly confirms that “UNCLOS sets out the legal framework within which all activities in the oceans and seas must be carried out”.

This cautious, collective “diplomatic speak” can be read to mean that any PRC maritime activities in defiance of the authoritative Philippine arbitration award interpreting UNCLOS are illegitimate. Of course, the PRC claims that the tribunal’s expert arbitrators, among the world’s leading law of the sea specialists, misunderstood UNCLOS and that a proper reading would sustain the PRC’s position.

This is what makes fascinating the recent signals that Vietnam may finally pursue its own maritime legal claims against the PRC by following the Philippine example and initiating its own claims against the PRC via UNCLOS arbitration arrangements. Curiously, the PRC has recently reportedly hinted at a possible receptiveness to Vietnam’s suggestion that Hanoi and Beijing agree to invoke third party legal decision-making to settle their maritime issues, which would be a momentous and positive step toward international law for Beijing. But don’t hold your breath waiting for Beijing’s agreement to any type of impartial, independent international maritime arbitration or adjudication. Nevertheless, at least some reconsideration of the wisdom of PRC refusal to take part in the Philippine arbitration may be under way in Beijing. 

Vietnam’s initiation of arbitration would itself be an exciting development, even more so than the Philippines’ stunning 2013 decision to try to take the PRC “to court”. A second authoritative arbitration award invalidating the PRC position would be a grievous blow to Beijing’s continuing legal efforts. For years I have been urging Vietnam to take this legal plunge despite the countervailing political and economic pressures that have inhibited Hanoi from going to law against the powerful neighbor on its borders.  International law is the last resort of the weak against the powerful. Yet invoking it can be risky!

[New Article] Law and Power in China’s International Relations

By Jerome A. Cohen

I've just uploaded on my SSRN another recent article —"Law and Power in China’s International Relations," which is slated to appear in the New York University Journal of International Law and Politics (JILP) in the Summer of 2019.

This article follows the line of investigation in my 1974 two-volume book co-authored with the late Professor Chiu Hung-dah, People's China and International Law: A Documentary Study, which looked into China's attitudes towards international law. Of course, the book was published in a time when scholars had a challenge finding sources about China's theory and practice of international law in certain respects. Now we're confronted with a different challenge, which is how to thoroughly and thoughtfully investigate an expansive China as it is taking on an increasingly active role in the international arena. I hope that this article offers an up-to-date summary of some important aspects worth considering. I'm pasting the abstract below. Comments are welcome!

Law and Power in China’s International Relations

New York University Journal of International Law and Politics (JILP), Vol. 52, 2019 (forthcoming 2019)

33 Pages Posted:

Jerome A. Cohen

Date Written: April 17, 2019

Abstract

This Article offers a much-needed updated examination of China’s resort to international law in its international relations, one of the most important and controversial topics facing today’s world. The Article analyzes a range of significant subjects concerning China’s contemporary theory and practice, including its WTO experience, territorial and maritime disputes, bilateral agreements concerning civil and political rights and multilateral human rights treaties. Noting that the current rules-based order appears unable to significantly restrain the exercise of China’s growing power, I argue that Beijing’s present attitude toward international law, which thus far seeks piecemeal changes issue by issue, may be in transition, inching gradually toward a more innovative, broader approach that shapes international law in ways that some observers see as resurrecting traditional China’s prominence in East Asia and that others fear reflect even grander ambitions. China’s growing power, however, is not as securely-based as widely-assumed, and we should not underestimate the extent to which China’s views are influenced by its interactions with the United States and its perception of American practice of international law.

Keywords: China, international law, WTO, territorial disputes, maritime disputes, bilateral agreements, human rights treaties, US-China relations