The rise of China and its implications for a changing international legal order.

Position:Proceedings of the 2015 Annual Meeting of the American Society of International Law: Adapting to a Rapidly Changing World - Discussion
 
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The panel was convened at 1:00 p.m., Friday, April 10 by its moderator Thomas Kellogg of the Open Society Foundations, who introduced the panelists: Captain J. Ashley Roach of the National University of Singapore Centre for International Law; Steve Wolfson of the U.S. Environmental Protection Agency Office of the General Counsel, International Law Group; Zhu Dan of Fudan University Law School; and Ji Li of Rutgers Law School.

REMARKS BY THOMAS KELLOGG *

Thank you all for joining us today for what I am sure will be a very exciting conversation about China's approach to international law. My name is Tom Kellogg, and I am the director of the East Asia Program at the Open Society Foundations in New York. I also teach China and International Law at Columbia Law School. Let me briefly introduce our panel, and then I will say a word or two about the format.

To my immediate left, Captain J. Ashley Roach, who is a former JAG for the U.S. Navy and was an attorney-advisor in the Office of Legal Advisor at the State Department for many years until his retirement in 2009. He continues to actively speak and write on Law of the Sea issues and has taught on Law of the Sea in a number of universities in the United States, and also has an affiliation with the National University of Singapore, which, unsurprisingly, has a deep interest in all of these issues.

To his left, Steve Wolfson, who is a senior attorney at the U.S. Environmental Protection Agency Office of General Counsel, where he coordinates international capacity building activities on environmental law. Steve has worked in a number of different parts of the world including Africa, Asia, Latin America, and also is recently back from China, and hopefully will fill us in on some of his meetings there, and has worked quite closely with the Chinese Ministry of Environmental Protection to strengthen Chinese environmental law and institutions.

To his left, Zhu Dan, who I should say was the originator of the idea for this panel, so all of us want to thank her for this opportunity today. She is a professor of law at Fudan University, where she teaches public international law, among other issues, and she is a leading expert on China and international criminal law, a subject on which she has written widely. She has also worked in the International Criminal Court (ICC), so she is not just an academic observer but also a direct practitioner, most recently working in the ICC Appeals Chamber.

Last but not least, Ji Li, who is a professor of law at Rutgers Law School from the great state of New Jersey. I know we have some New Jerseyans in this audience. Feel free to give Ji Li a shout-out at any point in time during his remarks. He has a JD from Yale Law School, where he was an Olin Fellow, and he has written widely on a range of issues including trade law, tax law, Chinese law and legal reform, and a host of other issues. I have had the opportunity, as somebody who also works on Chinese law, to discuss all of these issues with Ji Li and have uniformly found him to be one of the most informed observers of what is a very opaque process--at times, I should say, a very opaque process--of legal reform in China.

You can see we have a very distinguished panel here today, and we are going to try to cover an impossibly vast amount of real estate, including Law of the Sea, environmental law, China and the World Trade Organization (WTO), and China and international criminal law. You could not ask for a better group of experts to address these questions. And I have asked the panelists to think about some of the answers that their colleagues give and see if they can elicit some comparisons between China's approach to some of these different issues so that we will have, over the course of our time together, hopefully a compare- and-contrast moment in terms of China's overall approach to international law.

Inevitably, I should say, some of our panelists, and I myself, will make comparisons with America's approach to international law and use that as a pivot point, but I hope that we will limit ourselves to using the United States more as a comparator rather than as a direct subject of discussion. We want to keep our attention firmly focused on the Middle Kingdom, if we can.

In terms of the format of this discussion, it is going to be a Q&A. I have told our panelists that I may interrupt them in terms of their answers to questions and they have pledged not to take that personally. I have told them that I will play devil's advocate. Since we are here in Washington, I will say a number of things that I do not actually believe as part of my job as the moderator. And if I am doing my job well, none of you will have any idea of what I think about anything by the end of the hour. So I hope to achieve that goal.

I have received permission from all of the distinguished panelists, who have a number of different very distinguished titles, to address them by their first name. As we have told some of our international visitors, Americans are hopelessly informal, and I will adhere to that approach here, with their permission, of course.

With that as the sum total of preliminary and administrative matters that we have to cover, let us jump right in. And I will start with Ash on my immediate left. You are, obviously, one of the leading experts on the Law of the Sea and you have observed a very tense situation in the South China Sea over the past couple of years. It used to be said--by those of us working in the China field--that if the United States and China were ever to go to war, God forbid, it would be over Taiwan. I now think that we may have to revise that statement to say that if the United States and China were ever to have an armed conflict, it would either be over Taiwan or over the South China Sea.

Why is it, Ash, that China has made such a significant investment and such an expansive claim in the South China Sea? What is the skin in the game for them on this issue?

* Director of the East Asia Program at the Open Society Foundations.

REMARKS BY J. ASHLEY ROACH *

The skin in the game, as they often say, is that they have indisputable sovereignty over the features in the South China Sea. My sense is, the sovereignty issue aside, what is mostly driving China is the need for resources, whether they be living resources, whether they be mineral resources, whether they be fish, or whatever. It is a large country, it is a growing country, it is a growing economy and they need more, and they are going wherever they think they can get access to it. The South China Sea happens to be the closest one, but it is not the only place where they are looking for resources.

THOMAS KELLOGG

Obviously there has been some level of vagueness in terms of China's South China Sea claims, which is something I hope that we will get a chance to talk about. But before we go there, you cannot talk about China and the South China Sea without helping all of us to understand the Nine-Dash Line. What is it and why is this such a controversial issue in terms of what China is saying and what the rest of the world is saying?

J. ASHLEY ROACH

Because we do not know what the Nine-Dash Line means.

It depends. And we may get an answer coming up by pending litigation before the Arbitral Tribunal. The State Department did a Limits in the Seas 143, I think it is, that came out not too long ago where they looked at various possibilities of what it might mean. And the conclusion, if I recall the study correctly, is that it is, at best, in terms of legality, an indication of where they believe they have rights.

THOMAS KELLOGG

I mean, we are all lawyers here. I assume our audience includes at least three or four lawyers. Lawyers like specificity. Lawyers like a well-fleshed-out legal argument. Why do they not just say what they mean and mean what they say on this?

J. ASHLEY ROACH

Because they may not know institutionally, in terms of the whole government, what they mean. The study I find most useful is one that Linda Jakobson published through the Lowy Institute back in December. And its title, in one sense, says it all: "China's Unpredictable Maritime Security Actors."

What that says, and what the report I think very clearly spells out, is that there are a whole lot of actors within the Chinese government, and each one of those actors has its own interests and they are not all the same. Now, that is not bureaucratically unique, I should say--but the difference is that it is a much bigger country, and I think Westerners expect that there would be uniformity in position and that is clearly not the case.

THOMAS KELLOGG

Tell me if you agree with this--that China may be keeping it vague because they want to continue to advance their interests in the South China Sea, continue to consolidate their position without even further alienating their neighbors in Southeast Asia, especially the Philippines, Malaysia, and Vietnam.

If they came out and definitively said, at the governmental level, this is all of ours; the Nine-Dash Line actually indicates that we have all of the features inside the Nine-Dash Line and the exclusive economic zone (EEZ) will cover more or less the entirety of that, what is affectionately known as the cow's tongue, do you think there is that political dynamic there as well?

J. ASHLEY ROACH

I do not know the answer to that question. In one sense, what China has been doing in the last year has failed in your premise--

THOMAS KELLOGG

How so?

J. ASHLEY ROACH

--that they do not want to make things worse. They have made things worse, and they have made things worse with each one of their neighbors in various and sundry different ways. Now, why is that happening? Well, that is a question that is very hard to answer.

There is an opaqueness. And of course they do not have full disclosure, shall we say, of how the process works. But all of the things that I have seen--and my colleagues from the Center for International Law that...

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