Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Saturday, February 23, 2013

Still more on China-Philippines UNCLOS arbitration: the significance of China's 2006 declaration against UNCLOS dispute settlement

Some commentators on my first post on this issue have raised the following objection:

First commenter: "Sorry but China made a reservation when ratifying UNCLOS and expressly does not accept the compulsory dispute settlement regime under s 287."

Second commenter: (a) "The researcher commenting in the Global Times is actually right. When China ratified UNCLOS, it made a reservation which excludes all forms of dispute settlement in section 2 of part XV of UNCLOS (see http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#China%20Upon%20ratification). These kinds of reservations, although unfortunate for those in favour of increased international adjudication, are perfectly legal and it therefore does seem that the arbitral panel is without jurisdiction."

Second commenter (b): "A correction to my earlier post: China made the Declaration in which it does not accept the dispute settlement provisions of UNCLOS (which would normally be a reservation) ten years after ratification, which raises issues under treaty law; most likely the Declaration is invalid, but the question is who decides."

I appreciate the comments, but don't agree with them. First, it is not crystal-clear that China's declaration in fact covers the current dispute. The Philippines was of course aware of China's declaration and strove to phrase its case in a way that avoided its effect. For an excellent analysis (with hyperlinks) of the effect of China's declaration and its applicability to this case (concluding that China has a good case but not an airtight one), see this blog post.

Second, and most important, is the issue raised in the last part of Second commenter (b)'s statement: "the question is who decides." Exactly. My point is that this is not in fact a question. The arbitral panel decides. The parties do not get to be judge in their own case even on issues of subject-matter jurisdiction. Once challenged, they have to make their arguments in front of an arbitral panel.

February 23, 2013 in Commentary, News - Chinese Law, News - Miscellaneous | Permalink | Comments (1) | TrackBack (0)

More on China-Philippines UNCLOS arbitration

I blogged a few days ago about China's purported rejection of arbitration under UNCLOS of the Philippines' complaint over the Nansha islands. After speaking with colleagues who are international law specialists, I can add a bit more to the following paragraph:

As I read the Xinhua report of China's rejection, China also seems to be arguing that the Philippines is precluded from bringing this type of action because of obligations it has undertaken in other international agreements, specifically, the Declaration on the Conduct of Parties in the South China Sea. For this argument to work, it would have to be true that (a) the Philippines has indeed undertaken contradictory obligations, and (b) those obligations, under international law as recognized by the UNCLOS arbitral tribunal, will trump its rights under UNCLOS. I have no informed (or even uninformed) opinion about whether either part of this argument is sound. But I suspect that these questions must themselves be resolved in the arbitration proceedings.

It is theoretically possible that Country A could have rights against Country B under Treaty X, but has waived those rights under Treaty Y. This is what China is in effect arguing - that even if UNCLOS gives the Philippines a right to arbitration with China (and perhaps even the right to win the arbitration, although of course China would never admit even that hypothetical), it has waived that right by signing on to the Declaration of Conduct (the "DOC").

Here's the problem with that argument. First, it doesn't work in substance. Even if seeking arbitration under UNCLOS did violate a commitment made in the DOC - a very questionable proposition - the Declaration of Conduct does not amount to a formal treaty commitment of the kind that could override a contrary right to arbitration under UNCLOS. But hey - maybe you think that's not crystal-clear. What is crystal-clear is the second point, though: that the argument doesn't work procedurally. Parties don't get to judge the merits of their own arguments. China's argument about the effect of the DOC, like its argument about subject-matter jurisdiction (should it choose to make it) is one that must be made before the UCLOS arbitral tribunal, which has the power to decide its own jurisdiction.

In short, no matter how strong China's case is, it's one that has to be argued before an UNCLOS arbitral tribunal if another UNCLOS member starts proceedings. By joining UNCLOS, you agree to this procedure even in cases you think are frivolous. Is there anyone explaining this to the Standing Committee of the Politburo? They seem to understand it well enough when it comes to the WTO.

February 23, 2013 in Commentary, News - Chinese Law, News - Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Friday, February 22, 2013

Chinese law schools: a ranking (sort of)

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I just came across a ranking of Chinese law schools, posted on the web in April 2012. The source is a book entitled "Picking a University and Selecting a Major: A Guide to Applying to the 2012 College Entrance Examination" (挑大学 选专业-2012高考志愿填报指南). I'm reprinting the list below, translated by Google Translate with a few modifications by me.

A few caveats and observations:

  1. These rankings appear to have been compiled as an individual effort of the author of the book. I have no idea what methodology he used.
  2. This doesn't exactly rank "law schools." What it ranks is "the study of law." And the study of law here is defined to include law (narrowly defined), Marxist-Leninist theory, sociology, political science, and police studies. Thus, even if you think that Peking University ought to outrank Renmin University as a law school, maybe Renmin University really does outrank Peking University in Marxist-Leninist theory by more than enough to make up the difference.
  3. Law studies at the Institute for International Relations, well known as China's spy school, don't do very well at 95th. Maybe they're putting their resources into computer science these days.
  4. In another table on the same web page you can see what people are studying these days. Not surprisingly, engineering is pretty popular (801379 graduating undergrads in 2011). What did surprise me was the comparable figures for some of the other majors: apparently the romantic types who take literature (288014) and arts (181158) still outnumber (separately; you don't even need to add them together) those who take all of the courses subsumed under "law" combined (113342).

Ranking

Grade

School Name

1

A + +

Renmin University of China

2

A + +

Beijing University

3

A + +

Wuhan University

4

A + +

Tsinghua University

5

A + +

China University of Political Science and Law

6

A + +

Jilin University

7

A + +

Fudan University

8

A + +

Southwest University of Political Science and Law

9

A + +

Nanjing University

10

A + +

Sun Yat-sen University

11

A + +

East China University of Political Science and Law

12

A +

Central China Normal University

13

A +

Beijing Normal University

14

A +

Xiamen University

15

A +

Zhongnan University

16

A +

Shandong University

17

A +

Zhejiang University

18

A +

Nankai University

19

A +

Nanjing Normal University

20

A +

Northeast Normal University

21

A +

Huazhong University of Science and Technology

22

A +

Chongqing University

23

A +

Shanghai Jiaotong University

24

A +

Suzhou University

25

A +

Sichuan University

26

A +

Northwest University of Political Science and Law

27

A

East China Normal University

28

A

Xiangtan University

29

A

Zhengzhou University

30

A

Shanghai University

31

A

Heilongjiang University

32

A

Yunnan University

33

A

Hunan University

34

A

Shanxi University

35

A

Hunan Normal University

36

A

Hebei University

37

A

South China Normal University

38

A

Foreign Affairs College

39

A

Central South University

40

A

Shenzhen University

41

A

Southwestern University of Finance and Economics

42

A

Tianjin Normal

43

A

Jinan University

44

A

Xi'an Jiaotong University

45

A

Yantai University

46

A

Shanghai University of Finance and Economics

47

A

University of International Business and Economics

48

A

Nanchang University

49

A

Liaoning University

50

A

South China University of Technology

51

A

Southwestern University

52

A

Shanghai Normal University

53

B +

Tongji University

54

B +

Capital Normal University

55

B +

Shanghai Institute of Politics

56

B +

Central University for Nationalities

57

B +

Southeast University

58

B +

Anhui Normal

59

B +

Beijing University of Aeronautics and Astronautics

60

B +

Yangzhou University

61

B +

Central University of Finance and Economics

62

B +

Anhui University

63

B +

Central University for Nationalities

64

B +

Ningbo University

65

B +

Guangdong College of Commerce

66

B +

Lanzhou University

67

B +

China Youth Political College

68

B +

Jiangxi University of Finance and Economics

69

B +

Shenyang Normal

70

B +

Hehai University

71

B +

Shanghai International Studies University

72

B +

Hubei University

73

B +

China Agricultural University

74

B +

Zhejiang Gongshang University

75

B +

Henan University of Economics and Law

76

B +

East China University of Science and Technology

77

B +

Beijing Institute of Technology

78

B +

Henan Normal University

79

B +

Guangxi Normal

80

B +

Henan University

81

B +

Huazhong Agricultural University

82

B +

Zhejiang Normal

83

B +

Fujian Normal University

84

B +

Ocean University of China

85

B +

Changchun University of Science and Technology

86

B +

Jiangxi Normal

87

B +

Guangzhou University

88

B +

Guangdong University of Foreign Studies

89

B +

Dalian Maritime University

90

B +

Guangxi University for Nationalities

91

B +

Hebei Normal

92

B +

Hainan University

93

B +

Sichuan Normal

94

B +

Hainan Normal

95

B +

Institute of International Relations

96

B +

Northwestern University

97

B +

Jiangsu University

98

B +

Northwestern Polytechnical University

99

B +

Gansu Institute of Politics and Law

100

B +

Hunan University of Science and Technology

101

B +

Wenzhou University

102

B +

Nanjing University of Finance and Economics

103

B +

Zhejiang University of Technology

 

February 22, 2013 in Commentary, News - Miscellaneous, People and Institutions | Permalink | Comments (0) | TrackBack (0)

Thursday, February 21, 2013

Teng Biao's defense in the second trial of the Xia Junfeng case - English translation

Seeing Red in China has published a good translation of human rights lawyer Teng Biao's 2010 defense statement on behalf of Xia Junfeng, a street vendor charged with murder after a deadly fight with chengguan (urban administration) officials. I'm reproducing their introduction to the case below; for the introduction and links to the full statement in English and Chinese, click here.

February 21, 2013 in News - Chinese Law, People and Institutions | Permalink | Comments (0) | TrackBack (0)

Zhejiang man tried for 1967 Cultural Revolution killing

130219 Man tried in Zhejiang for Cultural Revolution killing (small pic)
Here's a pretty astounding story that's currently agitating the Chinese twittersphere/blogosphere: a Zhejiang man in his eighties was tried for a murder that took place in 1967, at the height of the Cultural Revolution. According to the China News Service story, the defendant, surnamed Qiu, was directed by the local militia to strangle the victim, a doctor suspected of being an informant for unspecified others - perhaps a rival group. Qiu was arrested in July 2012, after having been out of the area of decades. (The South China Morning Post story linked to above says he was "on the run", but the Chinese text doesn't support that interpretation; it just says he had been away from home for decades, without any implication that he was trying to avoid capture.)

This case raises two interesting legal issues.

First, is there no statute of limitations in China? Yes, there is. The longest period allowed is 20 years; that's for crimes punishable by life imprisonment or the death penalty (Art. 87 of the Criminal Law). There are two ways this prosecution could lawfully go forward, however, in spite of the passage of time. First, Art. 88 says that the ticking of the clock is suspended if the suspect flees investigation after authorities have initiated one or a court has already accepted the case. Thus, I suppose the case could be brought now as long as the authorities initiated an investigation within 20 years of the killing and the suspect is deemed to have fled. (If they waited longer, then there would be no crime left to prosecute, at least as I understand the rule.) That's possible: twenty years later puts us in 1987. Second, Art. 87 says that prosecutions can when necessary be brought even after twenty years have passed, but only with the permission of the Supreme People's Procuratorate. The short press report we have does not, of course, say anything about this.

Second, aren't the courtrooms of China going to get a little, ahem, crowded if we start prosecuting everyone who was involved in extrajudicial killings during the Cultural Revolution? One can understand the policy decision that some cans of worms should be left unopened. The Chinese Communist Party does not do Truth Commissions. Indeed, this very issue has already been thought about, and there was in the past an official poicy on it.

In 1984, the Supreme People's Procuratorate (the body in charge of prosecutions) issued an official Reply to a question from the Hebei Provincial Procuratorate about whether to prosecute those who had caused injury or death in the course of struggle sessions or forcing confessions through torture during the Cultural Revolution. The answer: "Cultural Revolution cases took place during special historical conditions. The issue of whether or not to prosecute these cases is highly political. In accordance with the spirit of relevant rules of the Central [Party Committee] and the Provincial Party Committee, the matter should be handled by political-legal organs according to law after reporting to the Party Committee [the administrative level of which is left unspecified] for examination, approval, and decision. If relevant organs have different views in the course of carrying out [this policy], they should report to the Party Committee for resolution through adjustment." In other words, it is recognized that these cases are not simple murder cases, and essentially a fact-intensive political decision must be made each time one of them comes up.

The legal effect of this document, however, was annulled in 1993 by another document from the Supreme People's Procuratorate. No reason is provided; perhaps it was just embarrassing to have this reminder around, or perhaps someone thought the language about having everything decided by the Party, instead of by legal professionals, was a little outdated and reminiscent of the Bad Old Days. The document does not explain why the earlier document was annulled or what policy should take its place, so it's a little unclear where we now stand: since the 1983 document essentially establishes a restriction on prosecutions and then provides a way to proceed, does annulling it abolish the restriction or does it abolish the way to proceed?

Whether this prosecution is a one-off or a harbinger of more to come is a question of more than just academic interest. The Cultural Revolution has not yet (despite the Party's best efforts) passed into the mists of history, where "the memory of man runneth not to the contrary," as they say in property law. People who were 20 in 1967 - certainly old enough to beat people to death - are now 66 and possibly still in good shape if they been doing their tai-chi. People who lost relatives are still alive, too. This case may awaken what was perhaps a long-dormant desire for vengeance.

I've provided a screen shot of the Chinese news story at the top of this post; it's already been scrubbed from several sites, and by the time I post this and you read it, it may be unavailable at the link I've provided.

February 21, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 19, 2013

Pu Zhiqiang barred from all mainland micro-blogging sites

China rejects arbitration with Philippines under UNCLOS; can it?

The news today is that China has rejected - or more accurately, purported to reject - the Philippines' attempt to resolve a dispute over sovereignty (over the Nansha Islands in the South China Sea) through arbitration under the UN Convention on the Law of the Sea. According to the Philippines' Department of Foreign Affairs, "The Department received this afternoon from Chinese Ambassador to the Philippines Ma Keqing a Note Verbale stating that China rejects and returns the Philippines’ Notification and Statement of Claim."

The Department goes on to say, "In its Note Verbale, China reiterated its often stated position that it has indisputable sovereignty over the entire South China Sea encompassed by its 9-dash line claim." This is interesting, if true. One perplexing aspect of the 9-dash line, which dates from the late 1940s when China was under Chiang Kai-shek's Kuomintang, is that successive Chinese governments have refused to say exactly what they mean by drawing it. Are they claiming, for example, that all islands within the line are Chinese, which would imply territorial waters 12 miles out from each island (and an Exclusive Economic Zone of 200 miles) but no further? Or are they claiming that the entire South China Sea is in effect a Chinese lake? The Chinese report of the rejection states only that China claims sovereignty over the Nansha Islands "and their adjacent waters." This is a more limited claim than the one the Philippines' government is reporting.

In any case, what I want to write about is the legal effect of China's rejection upon the arbitration proceedings. As far as I can see, it has no effect at all. According to China's Global Times, "The international court would not take the case without agreements from all parties involved, Dong Manyuan, a researcher at the China Institute of International Studies, told the Global Times." Sorry. No. Read your UNCLOS again. The proceedings do not require the agreement of both parties; or more accurately, each defendant has already agreed in advance to arbitration by the mere fact of joining UNCLOS. The Philippines has, pursuant to Article 286 and 287(1)(c), requested the formation of an arbitral tribunal under Annex VII. And Annex VII makes clear that the failure of a state to show up and cooperate does not bring the proceedings to a halt; they go on without it.

China's argument that the Philippines' notice of arbitration is factually flawed and contains false accusations is of course bogus; you don't get to reject otherwise justified proceedings against you just because you don't agree with the charges. Of course you don't agree with the charges; that's why arbitration is necessary.

As I read the Xinhua report of China's rejection, China also seems to be arguing that the Philippines is precluded from bringing this type of action because of obligations it has undertaken in other international agreements, specifically, the Declaration on the Conductof Parties in the South China Sea. For this argument to work, it would have to be true that (a) the Philippines has indeed undertaken contradictory obligations, and (b) those obligations, under international law as recognized by the UNCLOS arbitral tribunal, will trump its rights under UNCLOS. I have no informed (or even uninformed) opinion about whether either part of this argument is sound. But I suspect that these questions must themselves be resolved in the arbitration proceedings.

It's going to put China in an awkward position if it loses and simply blows off its treaty obligation to respect the arbitration decision.

[UPDATE: For a cogent analysis that's congruent with this one but discusses somewhat different issues, see Julian Ku's post here at Opinio Juris. In an earlier post, Prof. Ku argues that China may have a pretty strong jurisdictional claim. But typically arbitration panels decide their own jurisdiction to decide, so it's risky to refuse to appear and make that argument.]

February 19, 2013 in Commentary, News - Chinese Law | Permalink | Comments (3) | TrackBack (0)