Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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United in Paralysis

Bradley Willis

On April 1, 2017, the armed forces of Syrian President Bashar al-Assad launched a chemical weapon attack on a Syrian hospital.[1]  Unfortunately, this attack is not the first instance of chemical warfare in the Syrian Civil War.[2]

Raging for the past six years, the Syrian Civil War has claimed the lives of hundreds of thousands of men, women, and children.[3]  In 2012, then-President Barack Obama drew the non-infamous “redline”, claiming it would “change my calculus” if chemical weapons were used in the Syrian War. [4] While the Obama Administration appeared to be heading towards another intervention in the Middle East, the administration soon reversed itself, placing its hopes on a deal reached with the Russian Federation.  In this 11th hour deal, the Russians were to oversee the destruction of President Assad’s chemical weapons.[5]

While the United States may well have avoided another Middle Eastern quagmire and may well have ceded prestige and influence to the Russians, the world largely watched the horror unfold as thousands of Syrian citizens were rendered helpless by chemical nerve agents.  The world was horrified at the effects of the nerve agents, and yet the world continued with business as usual.

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Just as then-President Obama was torn between military intervention in the Syrian Civil War and non-intervention, President Trump is torn between intervening in a years-long war and remaining on the sidelines.  Even though candidate Trump campaigned on an “American First” platform, consistently claiming he was against the Second Iraq War from the beginning, the President must understand that America must stand for the non-use of chemical or biologic weapons against citizens, or even on the battlefield.

America, from its founding, has stood for the universal rights of freedom and self-determination, enshrined in our Declaration of Independence from George III, chief among them, life, liberty, and the pursuit of happiness.  While, like all nations, the history of the United States is tainted with horrific episodes, the United States stands for human rights.  In the history of the world, the United States is one of the only, if not the only, nation that fought a brutal civil war to set other men free from bondage.

Furthermore, the United States, and its allies, fought two World Wars under the principles of self-determination and freedom from tyranny, persecution, and genocide.  From the ashes of the Second World War rose the United Nations.  That institution too, seems incapable of stopping Assad’s gas attacks.

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     Protected by the Chinese and Russian veto, the Syrian government will probably never pay for its gross violation of international law and the laws of war.  This then begs the question: if the United Nations is no longer an institution capable of protecting the innocent, then what is its purpose in its current form?  What would make this institution capable of truly bringing violators to justice and face the consequences of their actions?

There has been some discussion on reforming the United Nations Security Council.  In what form would such an arrangement take?  Would there be any permanent members removed from their permanent positions?  Who would take their place?  In the event present permanent members are not removed, what members would receive permanent membership?  Finally, how would that affect the veto powers?

Some have offered the addition of the “BRIC(S)” as permanent members to the Security Council, minus the already-permanent members of Russia and China.  As the leading emerging economies Brazil, India, and South Africa would receive permanent status as well as a veto.

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As the largest country in South America, Brazil would add diversity to the Council, as it would be the only permanent member from South America.  As another emerging economy with a large population, and a democracy, India would be a leading candidate to receive permanent status.  However, given various geopolitical concerns, China would likely vocally oppose any such appointment to the Security Council’s permanent members.  Pakistan, India’s longtime rival, would oppose such an appointment as well.  Given the absence of an African voice on a permanent basis, South Africa would probably receive the veto and permanent status.  But the question would then turn to the following: given the dilution of the veto, what would be its power? 

Would the United Nations determine that since there would be as many as eight members, would any veto require just one permanent member to halt a resolution, or would two members be necessary?  Could this body become more democratic, with “majority rule” be the rule?  If that is the case, how would the decidedly non-democratic states of Russia and China respond?  They could, one could plausibly foresee, cut back on their involvement in the Security Council, deciding that they no longer have as much of a stake in the body.

While the United Nations has been unable to protect the innocent in conflicts like Rwanda, the Sudan, Syria, or Eastern Ukraine, the UN must reevaluate its work.  The United Nations appears paralyzed and incapable of living up to providing for peace and prosperity for all nations.  Perhaps a remedy for this apparent paralysis could include more permanent members of the Security Council while revising the current rules regarding the veto powers of the permanent members.  

While the United Nations expressed outrage as from this most recent chemical weapons attack against an innocent civilian population, the UN has not taken any concrete actions against Bashar al-Assad.  While President Trump campaigned on an “America First” platform, the president’s most recent actions[6] are polar opposites of such a course.  United Nations Ambassador Nikki Haley stated that, regime change in Syria is “inevitable.”[7]

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It appears that President Trump is evolving in his new role as commander in chief and as leader of the free world.  From campaigning on an “America First” platform to his strikes against Syria, and the dispatching of the USS Carl Vinson strike group to the Korean Peninsula, President Trump has shown he is willing to use military force to further the interests of the United States in the absence of United Nations action.[8]

Bradley Willis is a 3L at the University of Baltimore School of Law.  He graduated from the University of Delaware (2014) with a Bachelor of Arts in Political Science and minors in History and French and studied abroad in Caen, France.  His areas of interest are international relations, history, politics, and the laws of war.  Bradley spent a semester externing with the Hermina Law Group, researching and writing sovereign immunity issues as well as embassy law.  Last year, he participated in the Philip C. Jessup Moot Court Competition.  He is currently a law clerk for the Law Office of David B. Love, P.A.

[1] http://www.cnn.com/2017/04/09/middleeast/syria-missile-strike-chemical-attack-aftermath/index.html

[2] https://www.washingtonpost.com/world/national-security/nearly-1500-killed-in-syrian-chemical-weapons-attack-us-says/2013/08/30/b2864662-1196-11e3-85b6-d27422650fd5_story.html?utm_term=.4ada9a3de471

[3] https://www.nytimes.com/2016/02/12/world/middleeast/death-toll-from-war-in-syria-now-470000-group-finds.html?_r=0

[4] https://www.washingtonpost.com/news/fact-checker/wp/2013/09/06/president-obama-and-the-red-line-on-syrias-chemical-weapons/?utm_term=.598421a987c9

[5] http://www.bbc.com/news/world-middle-east-23876085

[6] Fifty-nine Tomahawk missiles were launched from two American destroyers in the Mediterranean Sea against the airfield the Syrian armed forces launched their chemical attack

[7] http://www.cnn.com/2017/04/09/middleeast/syria-missile-strike-chemical-attack-aftermath/index.html

[8] http://www.cnn.com/2017/04/09/politics/navy-korean-peninsula/


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Stay in your Lane: South Korea and China Sea Disputes

Kia Roberts-Warren

It is no big surprise that China has a problem with respecting the territorial waters of others. Recently, the Permeant Court of Arbitration (“PCA”) ruled in favor of the Philippines; a proceeding that China did not participate in and has not abided by the PCA’s decision.  However, since the early 2000s South Korea has been dealing with China encroaching on its waters.[1] The water disputes are really between South Korea and Chinese fisherman who illegally fish in South Korea’s waters. Chinese fishermen have been illegally fishing in South Korea’s waters due to the depletion of seafood in their own waters and the increasing demand that the more prosperous Chinese population has to spend on seafood.[2] The South Korean Ministry of Defense reported that 520 Chinese fishing boats were caught for illegal fishing between January and May of this year and 120 instances in 2015.[3] The South Korea coastguard has reported from 2006-2011 about 2,600 seizures of Chinese fishing for illegal fishing.

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On October 9, 2015, two Chinese fishing boats slammed into a South Korean speedboat that was trying to remove the fishing boats from South Korean waters which caused the speedboat to sink. This resulted in several Chinese fishing boats to come armed with spear-like metal rods, but another coast guard vessel arrived and fired an assault rifle and a grenade launcher.[4] Fortunately, no one was injured or killed. However, about two weeks ago, the dispute turned deadly. A 17 crew Chinese fishing boat was found in South Korean waters by the South Korean coast guard. The coast guard stopped the boat on the grounds of poaching on South Korea’s waters. The crew members locked themselves in the steering cabin to resist questioning and searching of the vessel. In order to force the crew out of the cabin, the coast guards threw flashbang grenades into the cabin. The boat unexplainably caught fire. The coast guards were able to save 14 men. An investigation was launched to find out what caused the fire.[5]

This is not the first instance where illegal fishing has turned violent and deadly between the South Korean coast guard and Chinese fishermen. The escalation for violence is due to Chinese fishermen trying to escape arrest and fines for thousands of dollars. Chinese fisherman have been reported to be in possession of axes and steel pipes in order to prevent the South Korean coastguard officers from entering aboard. Also, Chinese ships chain each other together to resist seizure. Moreover, they have taken advantage of the tensions between South and North Korea. They sometimes sign contracts in North Korea to cross the boundary into South Korean waters.[6]

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The first instance of violence between both parties began in 2008, when a South Korean coastguard officer drowned after he was hit by a Chinese fisherman. In 2010, during a boat seizure a Chinese fisherman drowned and another disappeared when their ship sank after ramming into the South Korean patrol boat. In 2011, a South Korean coast guard was stabbed with glass by a Chinese fisherman trying to evade arrest.[7] After this incident, South Korea once again called on China to do something about its citizens. China responded that allegedly it was working on reducing the illegal fishing by instructing Chinese fisherman about the law and sometimes even physically restricting their boats from crossing into South Korean waters. However, as long as the fisherman can return to Chinese waters no penalties are imposed on them. In 2012, a Chinese fisherman was killed by a rubber bullet fired by a South Korean coast guard. And in 2014, during a vessel search by the South Korean coast guard, a Chinese captain died from a bullet wound from an altercation between the parties.[8]

SOUTH KOREA RETAILATES

The South Korean government expanded its fishing zone and hours on October 1st,  intended to help local fishermen increase their income as well as the struggles they have faced with Chinese fishing boats being there illegally.[9] This appears to be in response to the most recent incident and because South Korea has politely urged China, but to no avail, to deal with its fishermen illegally fishing. The new policy broadens the Yeonpyeong Island zone by 14 square kilometers to the west. Fisherman will be allowed to start fishing 30 minutes before sunrise and one hour after sunset during the months of April-May and October-November, all of which are the peak of crab season.[10] Furthermore, this past Tuesday, the South Korean made an announcement that their coast guard would start using force, this includes ramming into fishing vessels, and crews service weapons or individual weapons for those who try to violently resist.[11] South Korea has also began installing anti-trawl devices on the seafloor near the border which would foul up Chinese fishermen’s nets.

LEGAL REMEDIES?

China has raised concerns that South Korea’s actions of using law enforcement as a violation of the bilateral fishing treaty in force by both parties. China has also made official comments in the past about South Korea using fair and non-prejudicial treatment and procedure when it comes to detaining and questioning of its nationals. Under international law, some of the deaths of its Chinese nationals in past disputes may rise to damages only if South Korea has failed to prevent an unlawful death or injury cause by agents of the state.[12] However, South Korea doesn’t have the same possibility. This is because the fishermen are private individuals and the deaths happened in South Korea’s waters.

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China may also have another claim to the expansion of South Korea expanding its territorial waters if South Korea actually has mechanisms in place to make this policy effective. States are given 12 nautical miles as their territorial waters. Under the Law of Sea there is nothing that allows a State to expand its waters. However, if China wants South Korea to conform to the Law of the Sea convention it would first have to respect the decision of the PCA and cease its activities in the South China Sea.

There may also be some liability to South Korea if the anti-trawl devices are a violation to the ocean and maritime law in general. However, since anti-trawl devices are a new invention it may take the international community some time to decide upon it.

South Korea could bring North Korea before the ICJ because of its violation of its State obligations to South Korea. The North Korean government is allowing Chinese private citizens to use its territory to violate their obligations to South Korea. However, there are questions that remain: would North Korea appear? Would North Korea accept the decision of the ICJ?

The liability issues involving all three States also are entangled with politics as well so one of these countries taking legal actions is very unlikely as well because their relationships are fragile.

Kia Roberts-Warren is a 3L at UB Law. She is concentrating in international law. Kia graduated from Temple University receiving a BA in East Asian Studies during that time she spent a semester in Tokyo, Japan. Kia has an interest in international trade and human rights. She is also interested in fashion law and art law in the international context. Last year, she held the position of Career Development Director of the International Law Society and participated in the 2016 Philip C. Jessup Moot Court Competition. She recently attended UB’s Aberdeen Summer Abroad Program.  

[1] http://en.koreaportal.com/articles/23168/20161003/south-korea-expands-fishing-zone-to-prevent-illegal-chinese-fishing-in-the-area.htm

[2] http://foreignpolicy.com/2016/10/12/beijing-tells-seoul-to-stay-calm-and-carry-on-after-chinese-fishermen-sink-a-south-korean-coast-guard-boat/

[3] http://foreignpolicy.com/2016/10/12/beijing-tells-seoul-to-stay-calm-and-carry-on-after-chinese-fishermen-sink-a-south-korean-coast-guard-boat/

[4] http://thediplomat.com/2016/10/south-korea-sees-frictions-with-chinas-maritime-militia-whats-next/

[5] http://www.nytimes.com/2016/10/01/world/asia/south-korea-china-fishermen-deaths.html?_r=0

[6] http://foreignpolicy.com/2016/10/12/beijing-tells-seoul-to-stay-calm-and-carry-on-after-chinese-fishermen-sink-a-south-korean-coast-guard-boat/

[7] http://www.nytimes.com/2011/12/13/world/asia/chinese-fisherman-kills-south-korean-coast-guardsman.html

 

[8] http://www.nytimes.com/2016/10/01/world/asia/south-korea-china-fishermen-deaths.html?_r=0

[9] http://en.koreaportal.com/articles/23168/20161003/south-korea-expands-fishing-zone-to-prevent-illegal-chinese-fishing-in-the-area.htm

[10] http://en.koreaportal.com/articles/23168/20161003/south-korea-expands-fishing-zone-to-prevent-illegal-chinese-fishing-in-the-area.htm

[11] http://www.maritime-executive.com/article/south-korea-to-respond-to-illegal-fishing-with-force

[12] http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1168&context=auilr


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The Plight of the Falun Gong

Christian Kim

“She’s awake, put her back to sleep!” muffles a man with a medical face mask on.  Inmate Zhu slowly wakes up from what feels like an eternity of sleep.  She hears a metallic clang from somewhere distant but not too distant from her.  Her eyes, not adjusted from the amount of sleep, glances over to the source of the sound.  Unable to make out the facial features of the individual, Zhu glances down at her body to see a foggy shade of red.  Zhu doesn’t remember how she got from her prison cell to this bed.  Her arms and legs refuse to listen to her commands to move, yet she feels something warm, dripping down her arms.  “We need these to be fresh!  Knock her out quickly!”  Zhu hears the scuffling of feet from the right as her head jolt violently to the left as the room slowly invites her into a lull of black.

While China’s alleged claims of ownership on the South China Sea continue to dominate international news, one major issue that hasn’t been addressed recently is the organ harvesting of Falun Gong practitioners.  Falun Gong was introduced to the general public in 1992.  It is considered a mix between a disciple and religion which basis most of the practice off of slow-movement meditation exercises that focuses on truthful tenants of compassion and tolerance.  Spurred by a popular growth in the early 90s, the Communist Party of China feared this huge growth spurt.[1]

Article 36 of the Chinese Constitution states that, “Citizens of the People’s Republic of China enjoy freedom of religious belief. No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion. The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. Religious bodies and religious affairs are not subject to any foreign domination.”[2]  On its face, the Chinese constitution seems to promote the freedom of religion, yet the important caveat of “The state protects normal religious activities” allows for the convenient excuse to violate any religion the government deems to be a threat.  Using this, the Falun Gong faith is not considered to be a normal religious activity and is an exception to the constitutional guarantees.   The Chinese government stated that Falun Gong practitioners were “a menace to society – a superstitious, foreign-driven, tightly organized, dangerous group of meditators.”[3]  Hundreds of thousands, if not millions, of Falun Gong practitioners have been arrested and targeted ever since the crackdown.[4]  While China is known for its religious freedom violations against religious minorities, the abuse against Falun Gong practitioners are even more alarming.

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Many of these Falun Gong practitioners are thrown in prison and a few are executed solely because of their beliefs.  Even though Chinese Christians and Uighur Muslims are subject to the same treatment, Falun Gong practitioners are systematically targeted during these executions.  According to various reports, Falun Gong practitioners are executed on a higher percentage than other religious or political prisoners because of their faith.  Falun Gong practitioners abstain from drinking alcohol or smoking and tend to live a healthy lifestyle where meditation and exercises are practiced on a daily basis.  As a result, their organs are in high demand on a domestic and, even more so, on an international basis.  The Chinese government reports a total number of 10,000 legal transplants on an annual basis, but various investigators claim that the estimate is actually between 60,000-100,000 annual organ transplants.[5]  These investigators also allege that the difference of 10,000 to 60,000 (on a low end) are made up primarily of Falun Gong practitioners.

In order to meet the great and expensive demand for fresh organs throughout the world, the Chinese government capitalizes on this industry with the organs from Falun Gong practitioners.  As soon as the demand of an organ arises, these “political” prisoners have their organs harvested shortly thereafter.  Some of the surgeons involved in these organ harvesting operations have even admitted to ripping the requested organs out while the individual was still conscious.[6]

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As the queue for organ transplant requests tends to be quite long outside of China, “organ tourists” try to capitalize on this practice.  Most of the revenue that the Chinese government obtains from this cruel practice comes from the pockets of the organ tourists.  This cannot be allowed on humanitarian grounds.

As a result of this practice, China has breached various international laws and conventions to which China has promised to follow.  One convention is Article 18 of the International Covenant on Civil and Political Rights which states, “”Everyone has the right to freedom of thought, conscience and religion; this right includes freedom […] either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”[7]  China is a signatory to this convention, yet they have not yet ratified this convention.  International law differentiates signing a treaty from ratifying a treaty since signing is just an agreement of what text is-not ratification.  Even though this might be true, China is a permanent member of the United Nations Security Council and as a result, has acknowledged its duty to protect the rights that are listed in the treaty.

The international community should come together to hold individuals involved in this practice accountable via the International Criminal Court (ICC).  The ICC has jurisdiction over: crimes against humanity, war crimes, the crime of aggression, and the crime of genocide.  One could argue that the practice of removing organs from Falun Gong practitioners is a form of genocide.  Genocide requires a mens rea and actus reus.  The mens rea here is the intent to destroy in whole or in part, a religious group, the Falun Gong practitioners.  The actus reus would be the systematic executions of these Falun Gong practitioners.  Since the ICC has jurisdictions over the crime of genocide, the Chinese surgeons who perform these operations can be held accountable.  If these individuals are brought to the ICC and given a significant amount of prison time, this could deter any future surgeons in partaking in illegal organ harvesting. However, there are significant procedural hurdles to overcome, since China is not a state party to the Rome Statute.

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Even though there are international coalitions against the practice of organ harvesting from vulnerable groups, there’s only one organ trafficking treaty that involves fourteen European nations.[8]  Several of the world’s biggest countries have released statements condemning the practice but that is not enough.  The United States and other world powers should call on the United Nations to establish a commission to investigate the organ harvesting practice.  Under international scrutiny, this might temporarily stop the Chinese government from allowing forced organ transplants.  Another way that the international community could substantially decrease this practice would be to screen potential “organ tourists” to China.  Many of the “organ tourists” are wealthy individuals who would rather pay large fees to state-approved hospitals in China in order to bypass the legal way of receiving organs in their respective countries.  By screening such tourists, this would put a significant dent on the revenue the Chinese government receives from wealthy “organ tourist” and as a result, substantially decrease this state-wide practice.

Christian Kim is a 3L at the University of Baltimore School of Law with a concentration in International and Comparative Law.  He graduated from the University of Maryland (2012) with a Bachelor of Arts in Criminal Justice.  He served as the President of the Asian Pacific American Law Student Association and is currently the Chief of Staff for the Student Bar Association.  His interests are East Asian politics, international conflicts, and human rights.  Before law school, Christian worked for the Korean Ministry of Education as a TaLK (Teach and Learn in Korea) Scholar and Coordinator for two years.  He is currently a legal researcher for the U.S. Commission on International Religious Freedom and a law clerk for the Law Office of Hayley Tamburello.

[1] http://www.dailynews.com/general-news/20140714/why-china-fears-the-falun-gong

[2] http://en.people.cn/constitution/constitution.html

[3] http://www.newstatesman.com/blogs/the-faith-column/2008/08/falun-gong-party-chinese

[4] http://endorganpillaging.org/falun-dafa-targeted-for-organ-harvesting/

[5] http://www.cnn.com/2016/06/23/asia/china-organ-harvesting/

[6]  http://www.dailymail.co.uk/news/article-3257383/Thousands-religious-prisoners-China-livers-kidneys-corneas-ripped-ALIVE-sell-transplant-tourists-claims-new-film.html

[7] http://www.ohchr.org/EN/Issues/FreedomReligion/Pages/Standards.aspx

[8] https://www.thelocal.es/20150326/european-nations-sign-worlds-first-organ-trafficking-treaty


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Legitimizing China’s Claim in the South China Sea

John Rizos

Conflict in the South China Sea is an alarming threat to international peace. The current situation between the US and China navies is reminiscent of a newspaper’s reaction to the Gulf of Tonkin Resolution during the Vietnam War. The US is planning to exercise its “freedom to navigation” through a third voyage in the South China Sea[1]. The voyage is said to be an assurance that China is not colonizing any disputed islands and not restricting trade or rights described in international law.

The Pentagon has been tracking Chinese military activity closely[2]. Officials have stated that China has increased spending on and usage of military modernization and has expanded its presence in the South China Sea[3]. US officials and military personnel have stated that such activity, especially in disputed areas, is destabilizing and poses a threat to trade routes in the region. This threat could damage America’s, and its allies’, trade route and competitiveness[4]. To emphasize the importance of the trade route in this region, $5Tr worth of shipping passes through the South China Sea each year[5]. Increased suspicious activity includes the construction of airfields on a man-made island on the Mischief Reef[6], attacks on Filipino fishermen[7], the deployment of anti-ship missiles in the area[8], and the attempted reclaims of Scarborough Shoal near the Philippines[9].

Although the Chinese government has condemned America’s intervention as indicative of a “Cold War” mentality and against modern trends for peace and cooperation, the US government has reassured that it will continue to send vessels to conduct freedom of navigation exercises[10]. It has made clear that it will not usurp to Chinese demands to stop such voyages. The US claims that China’s suspicious activity is against international law as preparations to colonize or annex disputed territories[11]. Maritime law allows for states to include seas up to 12 miles from their coast within their internal boundaries[12]. China claims that the US voyages will violate the 12-mile rule and will directly interfere with Chinese sovereignty[13]. US officials have stated that the navy will go wherever international law allows and any attempt of China to implement an Air Defense Identification Zone (ADIZ) would be ignored[14].

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An ADIZ would allow for complete control of the sky over disputed territories, which would require aircrafts to alert the government of their entry/exit. Failure to alert may result in military action. China has implemented an ADIZ over the disputed Japanese Senkaku Islands, but has never exercised it against US aircrafts that constantly ignore it [15]. The US is treaty bound to protect Japan and the Philippines. It will begin operating from five different bases in the Philippines[16]. The bases are strategic in regards to the widespread claims, which include small islands in dispute amongst China, Taiwan, Brunei, Malaysia, Vietnam, and the Philippines. The base locations are significant since they are located in the eastern South China Sea and face all the sovereign states and disputed islands of the region.

According to China, the U.S. violations of state sovereignty are direct challenges to the state’s national interests [17]. China claims control in many of the disputed islands based on “ancient activity.”[18] The US has responded to disputed claims by stating that the voyages are not meant to establish support on any sovereignty’s claim but rather to conduct operations that no unlawful restrictions on international law rights and freedoms exist[19]. Further, the China’s naval spear,[20] Hainan Province, is geo-strategically important. It is located in the South China Sea and it faces the region eastwardly and southwardly. China asserts that it should have authority over these islands and would manage and supervise these territories from the Hainan Base. It would include nearby islands within its 12 mile boundary and close off routes as internal waters. The Hainan base is stocked with nuclear submarines, through which China can and will defend itself [21].

It is understandable for China to view the U.S. voyages as challenges to their assertion of sovereignty. Article 17 of the UN Convention on the Law of the Sea, however, allows foreign ships to navigate “innocently” through another sovereign’s territorial sea. Article 19 of the Convention establishes the criteria of “innocent passage.” Under the criteria, a foreign ship is prohibited from using weapons or any threat of force, collecting state information, spreading propaganda, launching military devices or vehicles, loading or unloading commodities, fishing, polluting, conducting research, interfering with communications, and exercising any other activity that does not have a direct bearing on passage. Because China is arguing that these islands constitute a part of its territory, the waters could be considered part of its territorial sea. Further, China clearly does not buy the fact that the U.S. would not be collecting state information, conducting research, or interfering with its communications.

It is important to note that Article 17 is only applicable to waters within the borders of a sovereign, which would include the 12 mile extension rule of territorial seas from a sovereign’s border. The South China Sea, however is not (currently) part of China’s waters, rather it is open for international navigation. Even if China attempted to create an archipelagos by creating artificial islands or annexing disputed territories in the South China Sea, innocent passage for international navigation would still be allowed under Article 53 of the Convention[24]. China should watch out regarding its reliance on UNCLOS to save them in this fight, however, since Article 60 explicitly states that, “artificial islands…may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation.”[25]

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However, absent the artificial islands, China might have a case in claiming many of these territories based on a landmark international arbitration case. The 1928 “Las Palmas Case” in the Permanent Court of Arbitration held that in a disputed territory, an inchoate title could not prevail over continuous and peaceful display of authority by another state. Further, it is not necessary that display of sovereignty should go back to a very far distant period. In that case, the Netherlands’ display of authority prevailed in claiming Dutch possessions in the Philippines over the US’ claim on title of discovery[26]. Thus, it might be persuasive for China in showing that the mixture of its “ancient activity” and its continuous intervention in affairs over a territory might suffice as creating the disputed territories proper Chinese claims (in fact, it somewhat mirrors adverse possession on a global scale).

John Rizos is a 2L at the University of Baltimore School of Law. He has an interest in human rights and international criminal law. In addition to being a CICL Fellow, he is the Secretary for Phi Alpha Delta. He graduated with honors from Towson University with a BA in International Studies (2013). He has interned at the Press Office of the Greek Embassy in Washington, D.C. and the International Civil Advocacy Network (ICAN), a non-profit organization advocating for women’s rights in the Middle East.

[1] http://www.reuters.com/article/us-southchinasea-usa-idUSKCN0WZ018

[2] freebeacon.com/national-security/pentagon-concerned-chinese-anti-ship-missile-firing/

[3] http://economictimes.indiatimes.com/news/defence/chinas-activities-in-south-china-sea-may-pose-threat-to-trade-routes-us/articleshow/51612043.cms

[4] Id.

[5] http://sputniknews.com/asia/20160402/1037392985/us-challenges-china-tests-sovereignty-south-china-sea.html

[6] http://www.reuters.com/article/us-southchinasea-usa-idUSKCN0WZ018

[7] http://www.breitbart.com/national-security/2016/03/31/u-s-will-not-recognize-chinas-south-china-sea-borders/

[8] http://freebeacon.com/national-security/pentagon-concerned-chinese-anti-ship-missile-firing/

[9] http://www.morningnewsusa.com/china-war-south-china-sea-hainan-2368508.html

[10] http://www.breitbart.com/national-security/2016/03/31/u-s-will-not-recognize-chinas-south-china-sea-borders/

[11] Id.

[12] http://sputniknews.com/asia/20160402/1037392985/us-challenges-china-tests-sovereignty-south-china-sea.html

[13] Id.

[14] http://www.breitbart.com/national-security/2016/03/31/u-s-will-not-recognize-chinas-south-china-sea-borders/

[15] Id.

[16] Id.

[17] http://sputniknews.com/asia/20160402/1037392985/us-challenges-china-tests-sovereignty-south-china-sea.html

[18] http://www.breitbart.com/national-security/2016/03/31/u-s-will-not-recognize-chinas-south-china-sea-borders/

[19] http://www.reuters.com/article/us-southchinasea-usa-idUSKCN0WZ018

[20] http://www.morningnewsusa.com/china-war-south-china-sea-hainan-2368508.html

[21] Id.

[22] http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf at 30.

[23] Id. at 31.

[24] Id. at 42.

[25] Id. at 45.

[26] http://legal.un.org/riaa/cases/vol_II/829-871.pdf


2 Comments >

Christian Kim

As a rat scampers across the deck, the crashing of the waves violently rocks the floor. Lieutenant Mangidia, grabs onto the rusty side rails and hears one of his men heaving last night’s dinner into the ocean. He carefully steps over the cratered deck and pats the crewmember on his back. As Lieutenant Mangidia glances up, he spots the glistening beam of two brand new Chinese ships, coasting around the Sierra Madre like predatory sharks. The other nine members on the ship acknowledge their presence and collectively drone out a sigh of frustration.

CK Blog3_Photo2.png

The Sierra Madre, from an outsider’s point of view, seems like nothing more than a rusting World War II remnant. To the Philippines, it is much more. In order to assert their claims on the Second Thomas Shoal, the Sierra Madre was deliberately grounded near that area in 1999.[1] The Sierra Madre houses 10 Philippine Marines, who stay on the ship at all times to protect a nearby island.[2] This island, known as the Pagasa Island, has one of the few aircraft landing strips in the South China Sea.[3] It is also home to several hundred citizens of the Philippines and it is the only island in the South China Sea with a permanent population.[4] Even though the crew members of the Sierra Madre face morale issues and the citizens of Pagasa Island are in constant fear of imminent war, they know that their role is vital. The Pagasa Island and the Sierra Madre are two important, yet fragile, frontlines between the Philippine’s claim on the Second Thomas Shoal against China.

CK Blog3_Photo1

Anyone looking at this map can see that the territory China is claiming does not actually belong to China!

There are many island disputes in the Asian region; however, the South China Sea dispute has increased in tension dramatically in the early parts of 2016. This tension comes from both international and regional disputes. Depending on who you ask, the South China Sea can be referred to as the East Sea (Vietnam) or the West Philippine Sea (Philippines).[5] Countries such as China, Philippines, Vietnam, Malaysia, Indonesia, Taiwan, and Brunei have laid claims to some or the entire part of South China Sea.[6] These countries base their claims on historical maps, landmarks, decaying ships (like the Sierra Madre), proximity, UN Conventions, and more.[7] In 1974, China went to war with Vietnam for control over the Paracel Islands, which led to the deaths of over 70 soldiers.[8] Since then, there hasn’t been any major battles fought over the area. Although the South China Sea is home to hundreds of small islands and coral reefs, it has no indigenous people.[9] So, what could possibly be the cause of all this commotion?

One of the biggest advantages of having a legitimate claim to the South China Sea is that the location is strategically important. Not only does the South China Sea link the Pacific and the Indian Ocean, it is also an important shipping channel.[10] More than half of the world’s annual merchant fleet pass through these waters.[11] Countries such as South Korea, Japan, Taiwan and China receive their energy supplies through ships that cross into the South China Sea.[12] The South China Sea is also important for militaristic purposes in that manner as well.

CK Blog3_Photo4

The next big advantage is obvious! The South China Sea is rich in energy reserves, although the amount of energy reserves varies on the expert you ask. One estimate from the US Energy Information Administration is that there is approximately 11 billion barrels of oil and 190 trillion cubic feet of natural gas.[13] Even though the amount of barrel of oils might seem significant, it could only power China’s energy needs at an estimated range of three years.[14] The bigger resource in dispute is the natural gas deposit since it could possibly power China for ten times the previous suggested amount.[15]

The final big advantage of the South China Sea is that 10% of the world’s fishing is conducted in this body of water.[16] Millions of fishermen are employed in this region, but regional disputes have also led to conflict.[17] One of the biggest examples was back in 2012 when the Philippine Navy found a Chinese vessel fishing in the area.[18] The Philippines were trying to stop the illegal fishing when two Chinese surveillance ships blocked the Philippine Navy’s access.[19]

CK Blog3_Photo4

The South China Sea is just one of the few disputes that China is currently dealing with. Other issues such as their claims on Taiwan, Hong Kong, Tibet, Senkaku or Diaoyutai Islands are on China’s agenda. With the international limelight on the South China Sea dispute, a sign of weakness on their claims to the South China Sea might become a slippery slope to the aforementioned claims. The international community has been voicing their concerns over the South China Sea and most of it has been aimed directly at China. At the end of a recent G-7 meeting in Hiroshima, the leaders expressed their concerns and had a “strong opposition to any intimidating, coercive or provocative unilateral actions that could alter the status quo and increase tensions.”[20] Even though China was not explicitly mentioned in this statement, China reacted to it as if addressed to them by stating that the disputed claims in the region were “exaggerated.”[21]

Christian Kim is a 2L at the University of Baltimore School of Law and graduated from the University of Maryland with a Bachelor of Arts in Criminal Justice. He currently serves as the President of the Asian Pacific American Law Student Association as well as the 2L Rep for the Student Bar Association. His interests are East Asian politics, international conflicts, and human rights.  Before Law School, Christian has worked for the Korean Ministry of Education as a TaLK (Teach and Learn in Korea) Scholar and Coordinator for two years. He is currently a legal intern at the Hermina Law Group and a law clerk for the Law Office ofHayley Tamburello.

[1] http://www.philstar.com/headlines/2014/04/01/1307550/old-us-ship-home-filipinos-china-standoff

[2] Id.

[3] http://www.rappler.com/nation/93563-feature-pagasa-residents-philippines

[4] Id.

[5] http://english.vietnamnet.vn/fms/special-reports/106862/the-china-philippines-dispute-in-the-east-sea.html

[6] http://www.globalsecurity.org/military/world/war/south-china-sea.htm

[7] http://csis.org/publication/southeast-asia-scott-circle-tumultuous-2016-south-china-sea

[8] http://www.scmp.com/news/asia/article/1409007/vietnam-marks-40th-anniversary-chinas-invasion-paracel-islands

[9] http://aviation-defence-universe.com/south-china-sea-is-it-a-problem-with-no-solution/

[10] http://atimes.com/2016/01/china-and-the-south-china-sea-dispute-the-5-trillion-lie/

[11] Id.

[12] Id.

[13] http://www.abc.net.au/news/2015-08-11/south-china-sea-tensions-deter-oil-exploration/6688988

[14] http://www.ciis.org.cn/english/2015-05/11/content_7894391.htm

[15] Id.

[16] http://www.pbs.org/newshour/updates/5-things-didnt-know-south-china-sea-conflict/

[17] http://www.theguardian.com/world/2012/apr/11/philippines-china-stand-off-south-china-sea

[18] Id.

[19] http://thediplomat.com/2015/11/international-law-is-the-real-threat-to-chinas-south-china-sea-claims/

[20] http://www.bloomberg.com/news/articles/2016-04-11/g-7-raises-east-south-china-sea-disputes-in-hiroshima-statement

[21] http://www.ibtimes.com/g7-foreign-ministers-seek-calm-south-china-sea-2351631


6 Comments

North Korea: Actions, Not Words

Christian Kim

On February 7, 2016, North Korea drew heavy criticism from the United Nations by launching the Taepo Dong 3, a long-ranged missile.(1)  North Korea’s defense to the launch was that this was not a sign of aggression but, rather, a peaceful satellite test.(2)  This was not the first time that North Korea launched a missile test.  North Korea launched seven separate missile tests ever 1993, three of which occurred in the past four years.(3)  Although the first series of missile tests were unsuccessful, North Korea their success rate increases with every launch.  The missile test prior to the Taepo Dong 3 had the capability of reaching 10,000km, with the potential to target over 38% of the United States.(4)  With Taepo Dong 3, the coverage extended to 13,000km, allowing North Korea to target as far as New York City and Washington D.C. (5)

CK Blog 2_Photo1

The international community needs to take North Korea’s recent missile launch as a serious threat.  North Korea has consistently spewed hostile rhetoric of annihilating the United States, as well as the “puppets” of the United States, South Korea. (6)  Further indication that the Taepo Dong 3 missile test was far from innocent is North Korea’s past acts of aggression towards South Korea.   Even though the two Koreas signed an armistice agreement in 1953, they are still technically at war.(7)  In 2002, North Korea launched a surprise attack on a South Korean vessel, resulting in the death of six South Korean sailors.  (8)  In 2010, North Korea sunk the Cheonan, a South Korean naval vessel, in the Yellow Sea.(9)  Over 46 sailors were killed in this belligerent attack from the North.(10)  Despite North Korea’s denial of these attacks, South Korea had proof that North Korea was responsible.(11)   Almost eight months after the sinking of the Cheonan, North Korea unleashed an artillery attack on Yeonpyeong Island, destroying over 70 buildings and killing two South Korean soldiers as well as two civilians.(12)

CK Blog 2_Photo2

Although the United Nations Security Council unanimously condemned North Korea’s long-range missile test, this condemnation along with their proposed economic sanctions will not change North Korea’s attitude.(13)  Past economic sanctions on luxury items were unsuccessful because the North Korean regime managed to smuggle luxury items in through their biggest ally, China.(14)  Even though China’s relationship with North Korea has significantly deteriorated in the past few years, they still consider each other as important allies.  This is evident in the amount of trading that goes on between the two countries: 57% of North Korea’s imports and 42% of their exports are with China.(15)  It is unlikely that China will follow in the steps of the international community since China will have a lot to lose if they agree to the economic sanctions.  To convince China will take a lot more than simple persuasion and the change will not occur overnight.  For now, the most immediate step the international community can take is to convince South Korea to shut down the Kaesong Industrial Park indefinitely and to continue blasting anti-North Korean messages on their DMZ loudspeakers.

The Kaesong Industrial Park (“Kaesong”) is a joint economic collaboration between North and South Korea.  Kaesong is located in North Korea, approximately six miles north from the Demilitarized Zone.(16)  Over a hundred South Korean companies set up factories in Kaesong to employ over 50,000 North Korean workers.(17)  These North Korean workers work for a significantly cheaper wage than their Southern counterparts, so this is a profitable venture for the South Korean companies.(18)  Even though the South Korean companies pay wages directly to the North Korean workers, these workers are forced by the North Korean government to give the majority of their pay to the government.(19)  As a result, the North Korean government sees this region as a very important source of income.  There have been proposals in the past to have watchdogs ensure that wages stay with the Kaesong employees; however, the Kaesong employees were picked by the regime for their loyalty.(20)  It does not matter how many measures South Korea takes to ensure the wages go where they belong, it will eventually end up financing the very programs that South Korea is adamantly against. Although South Korea has pulled out of the Kaesong complex because of Taepo Dong 3 missile test, this is most likely a temporary decision.  Kaesong has been prone to shut downs and re-openings depending on the fluctuating tensions on the Korean peninsula.(21)  As soon as North Korea “apologizes” in regards to the missile test, it is almost certain that South Korea will restart operations at Kaesong.  Since these South Korean companies are indirectly financing the North Korean regime’s missile and nuclear tests, the South Korean government should step in and force these companies to shut down their operations in Kaesong indefinitely.  Even though the indefinite shut down of Kaesong will dampen the relations on the Korean peninsula, North Korea will realize that their neighbors down South are done playing games.

CK Blog 2_Photo3

While shutting down Kaesong indefinitely is one solution, restarting the DMZ loudspeakers would be an even better move.  In 2015, two South Korean soldiers were injured by landmines while patrolling the DMZ.(22)  These bombs were planted by North Korean soldiers with the intent to harm South Korean soldiers.  Once again, North Korea denied any involvement and refused to apologize.(23)  In response, the South Korean government reactivated their loudspeakers on the DMZ border.(24)  These loudspeakers can be heard up to 7.5 miles past the DMZ during the day and almost 15 miles past the DMZ at night.(25)  The loudspeakers are a source of concern for the North Korean government since news is broadcasted that the regime has attempted to keep from its citizens.(26)  These broadcasts, often, highlight the reality of the terrible conditions in North Korea.  At other times, the loudspeakers blast news stories from daily lives in the South or K-Pop music.(27)  North Korea has constantly threatened to fire at these loudspeakers, but were warned by the South that any attacks would be reciprocated.(28)  In order to have the South Korean government turn off the speakers, North Korea begrudgingly agreed to claim their sorrow at the South Korean soldiers’ injuries.(29)  Even though this wasn’t the best apology one could have hoped for, it was nevertheless an apology from a country that rarely acknowledges their mistakes.  If these loudspeakers made North Korea agree to take responsibility for the planted bombs, perhaps the continuation of these loudspeakers could make the North fess up to their “peaceful” missile tests and to take action against any future tests.

CK Blog 2_Photo4

Whether or not China agrees to apply economic sanctions to North Korea, the first step for the international community is to urge South Korea to take immediate action against the North.  Once South Korea has implemented the previously suggested measures, the next step should be for the entire international community to place harsh economic sanctions on North Korea.  Aside from medical and food sanctions, the international community should place a ban on any trade of non-essential goods.  The North Korean regime relies on the idea of self-reliance (“Juche”). If the citizens of North Korea realize that the government is no longer self-sufficient, the North Korean regime’s façade of a successful country will deteriorate.  When this realization occurs, the regime will have no choice but to listen to the demands of the international community.

Christian Kim is a 2L at the University of Baltimore School of Law and graduated from the University of Maryland with a Bachelor of Arts in Criminal Justice. He currently serves as the President of the Asian Pacific American Law Student Association as well as the 2L Rep for the Student Bar Association. His interests are East Asian politics, international conflicts, and human rights.  Before Law School, Christian has worked for the Korean Ministry of Education as a TaLK (Teach and Learn in Korea) Scholar and Coordinator for two years. He is currently a legal intern at the Hermina Law Group and a law clerk for the Law Office ofHayley Tamburello.

(1) http://www.usatoday.com/story/news/world/2016/02/07/north-korea-missile/79963198/#

(2) http://www.usnews.com/news/articles/2016-02-08/north-korean-missile-launch-prompts-new-calls-for-sanctions-tough-response

(3) http://www.bbc.co.uk/news/world-asia-pacific-15278612

(4) http://www.cnsnews.com/commentary/bruce-klingner/north-koreas-missile-launch-shows-it-could-target-us-homeland

(5) Id.

(6) http://www.theguardian.com/world/2016/jan/09/north-korea-says-souths-propaganda-broadcasts-taking-it-to-brink-of-war

(7) http://www.bbc.com/news/10165796

(8) https://medium.com/war-is-boring/north-koreas-history-of-violence-b9af3d35c17a#.rvt3ch8e0

(9) http://www.bbc.com/news/world-asia-32013750

(10) Id.

(11) http://www.bbc.com/news/10130909

(12) http://www.theguardian.com/world/gallery/2010/nov/24/south-korea-north-korea-pictures

(13) http://www.cnn.com/2016/02/07/asia/north-korea-rocket-launch-window/

(14) http://www.huffingtonpost.com/2013/03/20/north-korea-sanctions-luxury-goods_n_2910005.html

(15) http://www.anser.org/babrief_nk-economy-feature

(16) http://www.bbc.com/news/business-22011178

(17) Id.

(18) Id.

(19) http://www.rfa.org/english/news/korea/north-koreans-make-less-money-than-their-counterparts-at-kaesong-08142015164241.html

(20) http://www.cnn.com/2013/04/09/business/north-korea-economy-explainer/

(21) http://www.cbsnews.com/news/north-south-korea-resume-work-at-joint-kaesong-industrial-park-after-5-month-shutdown/

(22) http://www.dailymail.co.uk/news/article-3192103/South-Korea-accuses-North-Korea-planting-landmines-maimed-two-soldiers-patrolling-volatile-border-threatens-make-Pyongyang-pay-harsh-price.html

(23) Id.

(24) http://www.thestar.com/news/world/2015/08/17/north-and-south-korea-turn-up-loudspeakers-to-blare-propaganda-at-each-other.html

(25) http://www.bbc.com/news/world-asia-35278451

(26) Id.

(27) Id.

(28) http://www.telegraph.co.uk/news/worldnews/asia/northkorea/11813728/North-Korea-attacks-South-Korea-military-border-unit-and-fires-shots-at-loudspeaker.html

(29) http://fox6now.com/2015/08/24/tensions-eased-as-northsouth-korea-reach-deal-on-apology-loudspeakers/

 


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A New Yellow Turban Rebellion – Only With Umbrellas

Christian Noble

On October 14th, 2014, pro-democracy protestors in Hong Kong forced police to retreat from a tunnel previously blocked by additional protestors.[i]  As protestors reinforced their barricades, police returned to the tunnel within hours of being forced out and retook the thoroughfare.  It was during this retaking that protestors recorded Ken Tsang, a social worker and member of the Civic Party, on a fifty-one second cellphone video being led around a dark corner where police began kicking Tsang as he lay on the ground.[ii]  This blog will set forth the origin of Hong Kong including the current provision at issue, the Chinese government’s actions that led to the protests, and international repercussions, if any, of China and protestor actions.  What specifically brought about clashes between protesters and police?  It all began on December 19th, 1984 with the release of Breakin’ 2: Electric Boogaloo.

Image: TOPSHOTS-HONG KONG-CHINA-POLITICS-DEMOCRACY

  • History

The Government of the United Kingdom and the Government of the People’s Republic of China (PRC) signed the Sino-British Joint Declaration on the Question of Hong Kong (The Joint Declaration) on December 19th, 1984.[iii]  In The Joint Declaration, the United Kingdom restored Hong Kong to the control of the PRC on July 1st, 1997.[iv]  The PRC would not absorb Hong Kong under socialist rule; the “Hong Kong Special Administrative Region” (Hong Kong) would remain an autonomous region under the principle of “One Country, Two Systems.”[v]  Under this system, Hong Kong would retain the capitalist system it held under British rule while still considered under the purview of socialist China.[vi]

As a part of The Joint Declaration, the Seventh National People’s Congress of the PRC adopted The Basic Law on April 4th, 1990.[vii]  Imposing this law on Hong Kong, The Basic Law sets forth the general principles of the PRC regarding Hong Kong, including the protection of rights and freedoms, the political structure, and external affairs.[viii]  The Basic Law also details the method in which leaders of Hong Kong, specifically the Chief Executive, shall be chosen.  Article 45 of The Basic Law states: “The Chief Executive of [Hong Kong] shall be selected by election or through consultations held locally and be appointed by the Central People’s Government.”[ix]

20140930_China_autonomy

Allowing such a high level of democracy is not characteristic of the PRC as evidenced by the Tiananmen Square protests of 1989, but, per The Joint Declaration, Hong Kong would retain a relatively high degree of autonomy for the next fifty years.[x]  On July 1st, 1997, The Joint Declaration was officially in full effect and the transfer of Hong Kong from the British to the PRC was complete.  Simultaneously, The Basic Law took hold in Hong Kong establishing it as the supreme law.  No matter how autonomous, the PRC always retained a certain level of control over Hong Kong, and recently, the PRC has attempted to assert even more control.

  • Current Crisis

With an election for a new Chief Executive approaching in 2017, Hong Kong politicians began gearing up for election season.  On June 10th, 2014, Beijing published a White Paper reiterating the PRC’s “comprehensive jurisdiction” over Hong Kong.[xi]  State owned newspaper People’s Daily declared, “Hong Kong can maintain prosperity and stability… only when the policy of ‘one-country, two systems’ is fully… implemented.”[xii]  Some Hong Kong residents saw the White Paper as an attempt by the PRC to pressure voters into backing candidates who support the PRC.[xiii]  Two months later on August 31st, the PRC legislature ruled against allowing open nominations in elections for Chief Executive of Hong Kong.[xiv]  This method of choosing the Chief Executive is in direct opposition to the method used in prior elections where an electoral college selects the Chief Executive.

Hong-Kong

Specifically, the PRC will have a 1,200-member nominating body select candidates who will then be presented to the voters of Hong Kong.[xv]  After the vote is taken, the Chief Executive-elect must still be appointed to the position by the PRC.[xvi]  Protestors saw this as an opportunity for the PRC to screen candidates for their loyalties to Beijing.[xvii] The PRC justified its recent ruling by stating that allowing Hong Kong to openly nominate candidates would create a “chaotic society.”[xviii]  State owned tabloid The Global Times warned, “[T]he central government will not allow chaos in Hong Kong and it has ‘a lot of resources and leverage’ to prevent such situation [sic] to take place.”[xix]

As a response to the actions of the PRC, pro-democracy protestors began to occupy significant areas of Hong Kong’s financial district.[xx]  Over time, the protests spread, encompassing uptown Hong Kong and across the harbor to Kowloon.[xxi]  Chief among their demands, protestors are fighting for the ability to freely elect their leaders and the resignation of Hong Kong’s current Chief Executive Leung Chun-ying.[xxii]  After the protestor imposed deadline, Chief executive Chun-ying stated that he has no intention of stepping down.[xxiii]

Consistent with their message on the release of the white paper, the PRC is attempting to characterize the protestors as creating disorder among society.[xxiv]  China’s foreign minister, Wang Yi, noted that “Beijing would not tolerate ‘illegal acts that violate public order.’”[xxv]  The protestors have yet to damage property or inflict injuries on Hong Kong police, but the Hong Kong police have responded with tear gas and violence in attempts to disperse the crowds.[xxvi]  As a result of the police crackdown, Amnesty International reports at least twenty protestors have been detained and sixty called in for questioning.[xxvii]

In addition to promoting “order,” the PRC engaged local groups in order to bolster support for the PRC position.[xxviii]  One local group is the Federation of Trade Unions which is used to churn out counter groups of anti-democracy protesters.[xxix]  The disruption of commercial life in Hong Kong is a common critique of the democracy protesters, especially during the large shopping holiday “National Day week.”[xxx]  Not all groups approached by the PRC have been receptive to joining against the pro-democracy protestors.  The Hong Kong judiciary has ignored calls to be “patriotic” and instead asserted their independence.[xxxi]  What initially appears as an internal issue between China and Hong Kong may have international repercussions.

  • International Repercussions

International influence existing and invited regarding the internal strife in Hong Kong is different depending on whose viewpoint is characterized.  Senior officials in the PRC noted that “Hong Kong affairs are China’s internal affairs,” and “[a]ll countries should respect China’s sovereignty.”[xxxii]  Further, PRC President Xi Jinping regularly blames “foreign forces” for encouraging the pro-democracy protests.[xxxiii]  The last time the PRC handled completely internal democracy protests occurred in June 1989 with the deaths of students at Tiananmen Square.[xxxiv]  International reaction and pressure to deaths as a result of the current protests will, undoubtedly, be swift and condemning, but so far, pressure on the PRC has been muted at best. Secretary of State John Kerry reiterated the United States’ long-standing support of “…universal suffrage in Hong Kong, accordant with the Basic Law.”[xxxv]  Maybe hoping the PRC would see the light, Kerry added, “…we have high hopes that the Hong Kong authorities will exercise restraint and respect the protestors’ right to express their views peacefully.”[xxxvi]

Image: A riot policeman uses pepper spray during clash with protesters, as tens of thousands of protesters block the main street to the financial Central district outside the government headquarters in Hong Kong

China’s international agreements are similarly without teeth. As a signatory on the International Covenant on Civil and Political Rights (ICCPR), China is only required to uphold the object and purpose of the treaty, the object and purpose being the civil rights of its citizens.[xxxvii]  This fact coupled with a restrictive interpretation of the ICCPR could lead to a ratified treaty purporting to protect civil rights, while restricting them under the guise of protecting national and public safety.[xxxviii]  A narrative the PRC is persistently weaving to counter pro-democracy protestors.  In the absence of an international agreement, the argument of international intervention on the basis of jus cogens or erga omnes violations is not applicable.  The PRC transitioned to socialism in 1949.[xxxix]  Certain civil rights have never been a part of the PRC’s socialist regime.  As such, the PRC has a good argument that it is consistent in objecting to the withholding of certain rights, labeling itself a persistent objector.  This would relieve the PRC of any obligation under the ICCPR to respect the civil rights in question.

If the PRC wishes to continue its socialist policies, it is important that it not give into pro-democracy demands.  Giving in to democracy in an area where the PRC can exert a large amount of influence could lead to increased pressure over Taiwan, an internationally recognized “unsettled” state over which the PRC claims sovereignty.[xl]  With no clear end in sight, little support entering the area, and an entire state against them, pro-democracy protestors may be fighting, a battle, albeit a noble one, that they can’t win.

Christian Noble is a third year student at the University of Baltimore School of Law, planning to graduate in May 2015 with a J.D. and a concentration in International Law. He graduated from the Penn State University in June of 2008 with a Bachelors of the Arts in International Politics with a minor in Sociology. He has also studied Japanese and Korean language. During the winter of his second year, Christian studied abroad in Curaçao taking classes in International Law and European Union Law. The following summer, Christian studied abroad in Japan taking classes in International Business Transactions and the Japanese legal system. While in Japan, Christian interned with Nakamura & Partners, a Japanese IP firm located in downtown Tokyo.In addition to being a CICL Student Fellow, Christian serves as the Emerging Issues Editor for the Journal of International Law, Vice President of the Immigration Law Association, Treasurer of the Latin American Law Student Association, Treasurer of OutLaw, and 3L Representative of the International Law Society. Christian is also currently serving as a Maryland Rule 16 Student Attorney with the Immigrant Rights Clinic.

[i] http://online.wsj.com/articles/footage-of-beating-prompts-hong-kong-police-to-launch-investigation-1413343131

[ii] Id.

[iii] http://www.basiclaw.gov.hk/en/facts/index.html#3_7

[iv] Joint declaration of the government of the united kingdom of great Britain and northern Ireland and the government of the people’s republic of china on the question of Hong Kong, Para. 2

[v] Supra note iii.

[vi] Id.

[vii] Id.

[viii] Id.

[ix] Xianggang Jiben Fa art. 45 (H.K.).

[x] Supra note iv at annex 1.

[xi] http://www.bbc.com/news/world-asia-china-27790302; See also http://news.xinhuanet.com/gangao/2014-06/10/c_1111067166.htm (text of White paper in Chinese).

[xii] http://www.bbc.com/news/world-asia-china-27790302

[xiii] Id.

[xiv] http://www.theguardian.com/world/2014/aug/31/china-rules-out-open-elections-hong-kong

[xv] Id.

[xvi] Supra note iv at annex 1.

[xvii] Supra note xii.

[xviii] Id.

[xix] Id.

[xx] http://alj.am/1tT3MXH

[xxi] http://time.com/3447838/hong-kong-democracy-china-protests-anson-chan/

[xxii] http://www.aljazeera.com/news/asia-pacific/2014/10/hong-kong-protesters-set-midnight-ultimatum-201410252253727739.html

[xxiii] Id.

[xxiv] http://www.bbc.com/news/world-asia-china-29453490

[xxv] Supra note xx.

[xxvi] http://time.com/3453736/hong-kong-stands-up

[xxvii] http://www.washingtonpost.com/world/hong-kong-strategy-both-sides-eye-end-game/2014/10/01/b9af3bf6-4980-11e4-b72e-d60a9229cc10_story.html

[xxviii] http://oneline.wsj.com/articles/whats-at-stake-in-hong-kong-1412204981

[xxix] Id.

[xxx] http://alj.am/1uGUTGe

[xxxi] Supra note xxviii.

[xxxii] Supra note xii.

[xxxiii] Supra note xxvi.

[xxxiv] http://www.theguardian.com/commentisfree/2014/oct/01/china-doesnt-know-how-respond-umbrella-revolution-hong-kong

[xxxv] Id.

[xxxvi] Id.

[xxxvii] https://treaties.un.org/pages/viewdetails.aspx?chapter=4&src=treaty&mtdsg_no=iv-4&lang=en

[xxxviii] http://chinesejil.oxfordjournals.org/content/6/1/17.full

[xxxix] http://monthlyreview.org/2004/07/01/introduction-china-and-socialism/

[xl] John J. Tkacik, Jr., Taiwan’s “Unsettled International Status: Preserving U.S. Options in the Pacific (June 19, 2008