Tag Archive | "China"

The Trans-Pacific Partnership: Where Do You Stand?

Photo Credit: Saigoneer

On February 4, 2016, the Trans-Pacific Partnership, or “TPP”, was signed by the United States and eleven other countries as one of the most ambitious international trade deals in world history. Through its seven years of grueling negotiations, the criticism of this deal has been, for the lack of a better term, loud.  The TPP is a gargantuan, multi-national trade agreement with a lot of complicated international trade jargon; and as such, there have been a lot of choice words tossed around relating to it, not all of which is credible. Thus, what I am going to try to do is break down the pros and cons of the agreement:

 

Pro:

It will create jobs in the United States and improve the economy.

Economists forecast that the TPP will increase exports by 5 billion dollars, money that will be used to both create business, jobs, and wealth in the United States. It will accomplish this by removing roughly 18,000 tariffs in the Pacific, reducing costs and allowing American businesses to generate higher returns on their sales. While this may seem like a benefit we cannot afford, consider the fact that roughly 80% of tariffs with these 12 countries have been withdrawn prior to the implementation of the TPP. This will prove fairer to American business and make it easier for them to compete. US workers are expected to see a raise in income of about 77 billion dollars.It will help the American automotive industry by reducing the protective tariffs on automobiles in countries like Japan, making it easier to sell American cars to them and further aiding the American automobile industry.

It has strategic value against China.

If you haven’t notice, China is the elephant in the room of this deal. More specifically, they are the elephant outside of the room, as they were purposefully left out of the deal. This economic push has been a part of the Obama administration’s pivot to the Pacific, finding that China’s leverage over the United States has been increasing every day. This deal forms a unified front to compete against China economically in the region, led by the United States. It will create allies, and it will isolate China, preventing them from throwing their weight around during negotiations, and making it more likely that they will be careful not to rock any boats in the foreseeable future. China’s strength comes from its economic girth, and the threat of replacing the Chinese market with others will force it to negotiate from a weaker position in the international arena. These benefits are almost unknown, but it is agreed that it will mostly be positive for the United States.

It helps poor people in poor countries.

State-owned enterprises must comply with trade standards that mandate protecting their workers. Effectively, many countries that did not observe or allow unions to form before, must allow unionization now in order to comply with the TPP. Furthermore, most of these countries will observe benefits to poorest people, allowing them to find suitable, better paying jobs than before the TPP’s implementation. While NAFTA did hurt a considerable amount of people in Mexico, it paled in comparison to the kind of employment requirements the TPP will mandate of its parties. The truth is, measuring NAFTA’s effects on Mexico as an example of what the TPP will do won’t do the ambitious agreement justice. This is truly a whole other animal. For more information on human rights under the TPP, click here for another article written by one of our staffers, Jeremy Goldstein.

It is environmentally friendly.

All countries have agreed to cut down on wildlife trafficking, both marine and on land. It prevents environmental abuses. If a country does not comply with its duties under the TPP, they will be subject to “trade retaliation”, which is fancy word for voiding the parties’ trade responsibilities to the injuring country until they comply with the TPP. So effectively, countries that aren’t doing their fair share to save the Earth among the TPP will be subject to losing their privileges under the agreement. While it might be hard to imagine countries bring claims against others for these environmental violations, it would allow the party to implement trade barriers against the violating country, scoring points with local interest groups. There are reasons to do it, and rest assured it will happen. The frequency is the only real question on everybody’s minds, let alone how often violations will even occur.

Con:

It will kill jobs in the United States, and most of the benefits will be felt by the richest.

While there will be gains for workers across the board in the United States, most of that gain will go to workers making more than 88,000 dollars a year. This is partly because of the stronger international protections being offered to intangible property rights, making it even easier for the owners of that property to reap larger gains. Moreover, just like with NAFTA, there will be US jobs that will ship overseas, it is a major sacrifice of any trade deal. Particularly, manufacturing and textiles will feel the brunt of the move, but no industry will be free either. Even the service industry will send some jobs overseas. Overall, trickle-down economics is the major argument in favor of the TPP, but its application in reality has been brought to question by major economists including Robert Reich and Jeffery Sachs.

Foreign businesses will be able to sue the United States outside American courts.

It might surprise many to learn that this particular provision was implemented by American companies specifically. The primary reason behind investor-state arbitration provisions in trade agreements is to circumvent corruption. Corrupt governments make lawsuits practically impossible to sustain, forcing foreign companies trying to enter those markets to incur immeasurable costs. These provisions allow businesses to circumvent corrupt government practices and try laws under fairer arbitration tribunals. The arbitration award is granted to the business if the country was found to be in violation of the TPP, and the award is enforced by allowing all signatories of the treaty to implement trade restrictions as “trade retaliation” for not paying damages, along with measures under the New York Convention. This may seem like a huge win for big business, but it makes it easier for smaller businesses to enter foreign markets as well by reducing the costs of potential litigation in a corrupt country. While the United States will be suable by foreign businesses, it is worth noting that under NAFTA, the United States has never lost an investor-arbitration claimIf anything, the bigger potential for abuse will be against foreign governments who attempt to implement good policy in the name of public welfare, but they get attacked because of the heightened costs to foreign businesses. While that abuse remains, exceptions to investor-state arbitration were put into the TPP, such as in the tobacco industry. Foreign businesses will be allowed to use investor-state arbitration to challenge American laws that have damaged their businesses.

With that said, the only way to implement such a provision is to accept the standard ourselves. While the United States will be suable by foreign businesses, it is worth noting that under NAFTA, the United States has never lost an investor-arbitration claim. If anything, the bigger potential for abuse will be against foreign governments who attempt to implement good policy in the name of public welfare, but they get attacked because of the heightened costs to foreign businesses.

Intellectual property enforcement will prevent the poorer countries in the TPP from getting the drugs they need.

It should be noted however that this was a major obstacle that the US had to overcome with some of the poorer countries in the TPP. In order to surmount it, the US had to agree to shorter patent protection time periods, reducing the typically 12 year period to five to seven, depending on the patent. But that period could still prove to be too long, and many foreign governments simply cannot afford to pay for the exorbitant prices of some of these pharmaceutical drugs, even at discounted rates. While businesses under the TPP have agreed to continue to allow some creation or marketing of generic medicines using their patents, the intellectual property section of the TPP is one of the heftiest chapters and it remains to be seen how the interactions between all of these intellectual property rules will play out.

The deal will not protect the environment in practice.

Perhaps the most significant drawback to the TPP will be the environmental effects in practice. While each and every country will be required to comply with the environmental provisions of Chapter 20, the countries themselves will have to bring violations of the TPP’s provisions to a dispute resolution body. In fear of retaliatory or cross-claims, countries may be hesitant to actually bring violations of some of the provisions if the cost of adjudicating is simply too high in the short-run relative to the long-term damaging effects of environmental pollution. Essentially, this will also mean that businesses will find more pressure to compete internationally, forcing them to lower their costs. Environmental regulation can be costly to comply with, and many businesses will likely try to skirt around the rules as much as possible to lower costs.

To read the entire text of the TPP in full, click here. For a summary of each chapter, click here. Now that you have all the information, decide which side of the debate you stand on and feel free to comment below.

 

 

 

James Harmoush is a 2L at the Sturm College of Law and the Online Managing Editor of the Denver Journal for International Law and Policy.

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The Trans-Pacific Partnership: Exploring concerns over an Investor-State Dispute Settlement mechanism

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find more at https://curiousmatic.com/trans-pacific-partnership

After years of negotiations, this week saw the conclusion of the Trans-Pacific Partnership agreement (“TPP”). The TPP unites eleven pacific-rim nations and the United States–a collection of 40% of global gross domestic product and one-third of world trade–making it the largest regional trade agreement in history.

Although the terms of the agreement have not been released yet, it has been a divisive topic throughout negotiations. The Obama administration and TPP’s proponents point toward the elimination of more than 18,000 tariffs in place on American exports by the other participating countries as one of the key benefits of the deal. One of the sticking points for opponents to the deal is the inclusion of an investor-state dispute settlement (ISDS) mechanism. Critics of this ISDS provision claim it undermines state sovereignty by creating a supra-national tribunal where global corporation’s may sue member-states and receive taxpayer compensation.  On the surface, the critics concern is a real one–state sovereignty will be undermined–but states cede sovereignty each time they enter into an international agreement. The real issue at play is whether the obligations the TPP allows global corporations to enforce against the United States are so egregious as to make the cession of the United State’s sovereignty unacceptable.

An accurate answer to this issue cannot be had until the final terms to the TPP are released to the public. Although WikiLeaks published an alleged text of the Investment Chapter of the TPP in March of this year, which is said to create the ISDS. This post will wait to evaluate the obligations of the TPP until it is released. However, two of the rumored grounds for suit, “expected future profits” and indirect expropriation, are provisions found in many of the 3,000-plus trade agreements in place around the world. A look at corporations’ use of these provisions in other trade agreements provides positive arguments for both sides of the TPP ISDS debate.

Under NAFTA, Methanex, a Canadian corporation sued California for loss of $970 million in expected future profits after California banned the chemical MTBE from gasoline sold in the state. The NAFTA ISDS tribunal dismissed the claims against California. TPP supporters say the ruling prove that domestic regulations for the public good will win out under any ISDS regime. Opponents, on the other hand say that those companies from larger countries that are set to gain access to similar rights against the United States will not lose such cases. The ongoing dispute between the United States tobacco company Phillip Morris and Australia for mandating plain packaging of tobacco products on public health grounds is cited as an example of a suit TPP will allow against the United States to the potential detriment of taxpayers.

Opponents also fear “indirect expropriation” will be interpreted broadly by a TPP ISDS tribunal to oppose regulations that may diminish a foreign corporation’s investment expectations in the United States. An example of a corporation successfully suing a state for indirect expropriation is the 2012 Occidental Petroleum’s award of $2.3 billion from Ecuador for its expropriation of oil drilling. The Office of the United States Trade Representative has dedicated an entire website to dispelling critic concerns over a TPP ISDS tribunal issuing similar judgments against the United States. It cites investor burden of proof and a state’s ability to seek expedited review of frivolous claims brought against it as key mitigating factors.

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TPP protests

In the near future the final terms of the TPP will be released to the public. The agreement has the potential to change the United States’ strategic position in Asia and increase its exports in certain struggling industries. It also has the potential of opening the vault to the United States’ taxpayer money. I believe that in order for the TPP to pass congressional approval, ISDS provision must contain the mitigation mechanisms necessary to prevent foreign corporations from impeding the United State’s sovereign right to regulate trade within its borders. Whatever the outcome, the TPP ISDS tribunal will likely influence a similar ISDS provision in the Transatlantic Trade and Investment Partnership currently being negotiated between the United States and the European Union.

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China's Island Building

Critical Analysis: China’s ‘Island-building’ may suppress economic growth in Asia

 November 14, 2014

The dispute between Vietnam and China over the CNOOC oil rig has been resolved by the withdrawal of the 31,000 ton structure from the disputed area of the Paracel Islands, but the fight in the South China Sea is far from over. Vietnam, China, The Philippines, Brunei, Malaysia, and Taiwan all have existing developments on islands and reefs in the sea, and all claim title to portions pursuant to ITLOS delimitations. Approximately 11 billion barrels of oil and 190 trillion cubic feet of natural gas lie under these waters, home to fertile fishing grounds and vital shipping lanes. However, controversy over the legal stewardship of the South China Sea stems not merely from land-sea border baseline delimitation claims. Existing developments such as oil and communications platforms installed back in the 1980’s and beached, but manned, ships are cited by these states as evidence supporting claims to ownership. Now, with the introduction of its ‘island building’ campaign, China is stirring up choppy waters and increasing the pressure on its South-East Asian neighbors, which could lead to an arms race.

China's Island Building

Airbus Defence and Space imagery shows land reclamation ongoing at Johnson South Reef in the South China Sea. Images released by the Philippine Ministry of Foreign Affairs on 15 May 2014 (left) show the progress of construction on the reef from 13 March 2012 to 11 March 2014.
Photo & Caption Credit: CNES 2014, Distribution Astrium Services/Spot Image S.A./IHS, IHS Jane’s Defence Weekly – 15 May 2014

Johnson South Reef, originally claimed by Vietnam and The Philippines, is a picturesque chain of islands and reefs at the southern end of the South China Sea. China first occupied the reef in the late 1990’s, and built a communications platform. In recent years the Chinese have expanded this platform to a 75+ acre island by dredging sand from the ocean floor to form a landmass. This summer, China completed construction of concrete and desalination plants on the island, and now looks to be planning further construction capable of sustaining a military and civilian population. While Vietnam and other ASEAN nations have countered by expanding some of their installations in the region, construction of this magnitude is costly and far out of reach for anyone with claims other than China. The newly formed island could act as an advanced outpost for Chinese military campaigns and as a mechanism to advance ownership claims. China asserts their actions are justified, and that under UNCLOS any newly developed and populated island would extend Chinese territory past the 9-dash line. However, UNCLOS Article 60 expressly prohibits the determination of delimitation based on artificial islands.

Additionally, all construction and militarization of existing features in the region is prohibited by the 2000 Declaration on the Conduct of Parties in the South China Sea (Declaration on the Sea). This non-binding declaratory effort to reduce aggression and promote peace and stability in the region has been largely ignored. This is likely because the Declaration is both vague and strict, simultaneously; It requires all parties to “exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability.” This declaration was intended as a voluntary mechanism to reduce tension between China and the ASEAN bloc and support future economic integration. Instead, it has become a thorn, reminding all parties involved of the fragility of the relationship.

Militarization of the island could trigger an arms race, forcing all nations with claims to ramp up military expenditures and increase construction of South Sea outposts. This could cause widespread economic problems in countries that are just now liberalizing international economic policy to increase development. An escalated dispute could also put future trade and investment treaties between the ASEAN bloc and China in jeopardy, reducing the annual FDI inflows these nations receive. Ultimately, an arms race could play out in one of two ways: 1) If there is no military conflict the result would be decreasing trade, economic consequences, and missed opportunities, or 2) there could be a military conflict between China and one of its Asian neighbors.

Neither result would be good for the future peace and stability of the region. China will be better served by utilizing the Declaration on the Sea as a mechanism through which to resolve the island disputes peacefully. China should cease all unilateral construction, militarization, and drilling immediately and work towards developing a joint extraction partnership plan with its ASEAN neighbors. The 2014 APEC summit would have been an ideal time to address these issues and APEC could be a potential platform for negotiations in the future. An increase in trade and investment with the ASEAN bloc is more beneficial to China’s future than claims to all of the shoals and atolls in the South China Sea.

Jeremy Goldstein is a 1L law student at University of Denver Sturm College of Law and a Staff Editor for the Denver Journal of International Law and Policy.

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Protestors hold signs and placards

Critical Analysis: Protesting China’s Pre-Approved Candidate List

October 20, 2014

Thousands of people in Hong Kong are protesting a decision by China’s top legislative committee that voters would be able to choose only from a list of pre-approved candidates for the office of Chief Executive of Hong Kong. This decision, which came down in August of 2014, is a way in which the Chinese government can fulfill its promise to Hong Kong to have direct elections for Chief Executive by 2017, while controlling who is eligible to be elected through the new system of universal suffrage.

The promise to have universal suffrage in Hong Kong stems from a 1984 agreement between China and Great Britain, in which Great Britain restored Hong Kong to China. This agreement promised Hong Kong a high degree of autonomy. Hong Kong’s leader, the chief executive, is currently elected by a 1,200 member election committee, which many view as pro-Beijing. The Chinese government decision to vet the candidates for chief executive is what sparked the protests in Hong Kong.

Two main groups lead the protests, which began in late September of this year. Occupy Central was founded by moderate pro-democracy activists and is insisting the Chinese government not assess and pre-approve candidates for election in 2017. The other main organizer of the protests is the Hong Kong Federation of Students, which initially boycotted classes, but is now protesting at sites throughout Hong Kong. Protestors believe that the Chinese government will use the vetting process to weed out any nominees who are not pro-Beijing. In a call for true democracy and genuine universal suffrage, the protestors have assembled in the streets of Hong Kong to pressure the government to make a change.

Protestors hold signs and placards

Pro-democracy lawmakers hold up a banner and placards to protest as the deputy general secretary of the National People’s Congress of China speaks during a brief session in Hong Kong. Photo and Caption Credit: Bobby Yip/ Reuters, http://www.wsj.com/articles/photos-hong-kong-election-decision-prompts-protests-1409515247.

The groups leading the protests have advocated for non- violent campaigns in the streets of Hong Kong. Street protests soon led to the students of the Hong Kong Federation of Students threating to occupy government buildings if the current Hong Kong Chief Executive CY Leung did not resign. In recent days, the protests have been mired in violence. On Saturday, October 18, protestors reclaimed a site that had been previously cleared by the Hong Kong police, sparking violent clashes with police using pepper spray and batons to gain control of the crowd. Pictures and video have surfaced of police officers, who are now on temporary leave, beating protestors. These photos have surfaced in the midst of increasingly violent altercations between police and protestors, including the use of riot shields and tear gas to disperse crowds.

The next step for the protestors advocating for a genuine direct election process will happen on Tuesday October 21st. Hong Kong Chief Executive, CY Leung, has set up talks with the Hong Kong Federation of Students but it is said that these talks will not address the core issue of genuine universal suffrage in 2017. Instead, these talk will focus on the recent violent clashes with local police.

While the upcoming talks between protestors and Hong Kong officials may not cover the key issues, they are a step forward for the protestors. In a time when violence is growing, dialogue between protestors and officials is increasingly important. The people of Hong Kong fighting for genuine democracy must continue to fight in a non-violent manner, to take the higher road. They are gaining the support of the international community and their movement will only be bolstered by a peaceful civil protest that delivers a message unblemished by violence.

 

Julie Marling is a 2L at the University of Denver Sturm College of Law and is a staff editor for the Denver Journal of International Law and Policy.

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Critical Analysis: The U.S. Should Suspend Adoptions from China

China, like the U.S., has a website that is dedicated to finding missing and exploited children called, “Baby Come Home.” Unlike the U.S., a large percentage of those children have probably been kidnapped for adoption by unsuspecting American parents. Since China opened its doors to international adoption in 1991, over 83,000 Chinese children have received American parents, the largest number worldwide.[1]

In 2006, the Chinese police uncovered six Hunan orphanages that had paid kidnappers anywhere from $400 to $538 for each child acquired. The operation had been going on for four years, so at least a thousand children had been stolen from their birth families and sent to the orphanages for international adoption. The children were usually taken from another province in China and moved to Hunan to avoid detection. It would be naïve to assume that these problems are all in the past. In June of 2012, the Chinese police arrested 76 suspects for infant abductions acquired for resale in the Yunnan province. The infants went for as high as $1,582.

Parents hold on to hope of finding their missing children. Image Source: AP

Parents hold on to hope of finding their missing children. Image Source: AP

In 2010, parents of missing children protested in Beijing about the lack of investigation by the Chinese police. China claims that only 10,000 of its children are abducted each year; however, the State Department has conceded that the numbers may be as high as 20,000 annually. Every year, approximately 30,000 to 60,000 missing children are reported to Chinese police. A child is usually taken from migrant workers because of the parents’ lack of clout with police.

Once an orphanage decides to put a child up for international adoption, it must publish an ad in the local newspaper to notify potential claimants about the lost child. Since most of the kidnapped children are routed from their homes to other provinces, it is unlikely that the local paper of the orphanage would inform searching parents of their children’s whereabouts. Sixty days after the post, the child is available for adoption to the US.

The media has often portrayed China as a land full of abandoned, healthy baby girls, but the current lack of supply and the subsequent need to refill that supply has been glossed over. In 2007, China admitted that it “lacked available babies to meet the spike in demand.” In 1991, the one-child policy (“policy”) may have contributed to the surplus of female infants in Chinese orphanages but oversupply is no longer a problem. Abortions and other forms of birth control are readily available in China. The policy has been effective at reducing China’s population from 5.81 children per family in 1970 to an average of 2.31 in 1990.[2] At 2.31, the population will no longer grow but simply replace the current generation. Moreover, with China’s increasing economic wealth, families are able to pay the penalties for having more than one child if the province strictly enforces the policy.

In an informal survey conducted by Stuy, 227 out of 259 Chinese orphanages claimed that they did not have any healthy infants available for domestic adoption even though the children were conveniently available for Americans. American parents must pay the orphanage a fee of $3,000 to $5,000 for each child adopted. Assuming the minimum fee of $3,000, almost $252 million has been transferred from the U.S. to China in exchange for children since 1991.

In the U.S., the birth parents’ rights to a child tend to supercede the adoptive parents’, even if the child has been with the adoptive parents for years. However, when it comes to international adoptions, the U.S. does not give the same amount of deference to Chinese parents’ rights to their children. As a ratifying country to the Hague Convention, the U.S. should attempt to uphold the principles of the Convention even if the treaty is not self-executing. The U.S. should suspend adoptions from China because the practice is feeding into the kidnapping of children and corruption within the country. The “best interests of the children” are not being taken into account when encouraging adoptions from China. China is more than capable of absorbing any healthy, abandoned children within the country. U.S. suspension of adoptions from China would force the country to take kidnappings more seriously, especially with the amount of Chinese parents that have lost children.

Helen Lee is a 3L at the University of Denver and a staff editor on the Denver Journal of International Law and Policy



[1] See, Elizabeth Bartholet, Int’l Adoption: Thoughts on the Human Rights Issues, 13 Buff. Hum. Rts. L. Rev. 151, app. B (2007). See also, Significant Source Countries of International Adoptions (Totals of IR-3, IR-4, IH-3, and IH-4 Immigrant Visas Issued): Fiscal Years 2003-2012, U.S. Department of State, http://travel.state.gov/visa/statistics/ivstats/ivstats_4581.html

[2] Sharon K. Hom, Female Infanticide in China: The Human Rights Specter & Thoughts Towards (An) Other Vision, 23 Colum. Hum. Rts. L. Rev. 249, 266 n.59 (1992).

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Critical Analysis: China’s Air Defense Identification Zone

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Ownership of the disputed islands is crucial for the rights to use the oil, minerals, and fish in the surrounding waters. Image Source: Wikimedia

On November 23, 2013, China declared an Air Defense Identification Zone (ADIZ), which stated that “aircraft in the area must report their flight plans to China, maintain two-way radio and clearly mark their nationalities on the aircraft.”  China’s declaration has drawn harsh criticism from Japan and the United States.

While ADIZs are not a new concept, China’s ADIZ has created tension because the zone includes a chain of islands that are the center of a long dispute between China and Japan.  ADIZs are declared by many nations, allowing the territory to potentially stop unfriendly aircraft from entering its airspace.  James Hardy, the Asia-Pacific Editor of IHS Jane’s Defence Weekly, stated that an ADIZ is “unilaterally imposed, so it doesn’t really have a legal basis and isn’t based on negotiations with neighbors.”  The ADIZ includes the Daioyu/Senkaku islands, which both Japan and China claim as part of their territory.

Secretary of State John Kerry released a press statement on November 23, noting its deep concern over China’s ADIZ and warning that the move will increase tensions and a risk of an accident.  The Secretary stated that the United States does not “apply its ADIZ procedures to foreign aircraft not intending to enter U.S. national airspace,” and urged China not to take action against aircraft that do not comply.  China’s state-run news agency said that the U.S. and Japan are “pursuing double standards,” condemning the countries for voicing concerns over China setting up an ADIZ while both countries have had an ADIZ in place for years.  The state-run news agency said, “Japan set up such a zone in the 1960’s and it even one-sidedly allowed the zone to cover China’s Diaoyu Islands.”

The disputed islands, called Senkaku Islands by Japan and Diaoyu Islands by China, are claimed by both Japan and China.  China claims that Chinese fisherman began using the islands in the 1400’s, and has had a right of ownership ever since.  However, Japan recognized the islands as part of its territory in 1895, after conducting a survey in which it “saw no trace of Chinese control of the islands.”    After Japan’s surrender at the end of World War II, the islands were “administered by the U.S. occupation force.” Once the U.S. withdrew in 1972, the U.S. returned the islands back to Japan.

The islands have remained in dispute, but tensions have increased over the past year.  In April 2013, a Japanese nationalist group sent several boats into the disputed waters, a mission aimed at “publicizing Japan’s territorial claim to the area.”   China responded by sending five more ships to the already three ships stationed in the waters to monitor Japan’s activity.  When Japan’s coast guard ordered the Chinese ships to leave, the ships refused, claiming they were “patrolling Chinese territory.” Eventually the ships set out by the Japanese nationalist group left the area without incident.  The islands are important to both countries because the territory that owns the islands has “exclusive oil, mineral, and fishing rights in surrounding waters.”

On November 26, two United States Air Force B-52 planes flew over the ADIZ, and the pilots did not identify themselves as required by China.  Although the United States has stated that it does not recognize China’s ADIZ, it is urging commercial pilots to adhere to China’s new requirements, citing safety reasons.  However, Japan has stated that its commercial airlines will not follow China’s requirements.  As tensions rise in the Pacific, the U.S. has cause for concern – Japan and the U.S. have “a mutual security treaty.”   Although the Treaty does have a provision where both parties undertake to solve disputes peacefully, Article V of the Treaty recognizes that each party would “act to meet the common danger” in the event of an armed attack in Japan.

 

Lisa Browning is a 3L and the Training Editor on the Denver Journal of International Law & Policy

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Critical Analysis: U.S. B-52s Cause More Buzz Over Disputed Diaoyu/Senkaku Islands

On Monday, November 26, the United States sent two B-52 bombers over a group of disputed islands in the East China Sea after China recently declared that the islands were within the country’s air defense zone. The disputed islands, called the Diaoyu Islands by the Chinese, and the Senkaku Islands by the Japanese, are at the heart of an international dispute in which each country claims the islands as their own.

After China released new coordinates for its air defense zone, the U.S. flew two unarmed B-52 bombers over the islands.

After China released new coordinates for its air defense zone, the U.S. flew two unarmed B-52 bombers over the disputed islands.

The islands are prized for their strategically significant location to nearby shipping lanes, and for their potential abundance of natural resources. Modern dispute over the ownership of the islands has existed since the 1970s. However, the dispute over the islands seems to be escalating. A little over a year ago Japan sent fighter jets to the islands after a Chinese plane was sighted in the area on December 13, 2012. That marked the first time that aircraft became involved in the dispute.

A little less than a year later, on November 23, 2013, China released information pertaining to the coordinates of its new air defense zone, which happens to encompass the Diaoyu/Senkaku islands. It accompanied the release with a declaration requiring any aircraft entering the zone to clearly mark the nationality of the aircraft and for pilots of the aircraft to identify themselves and to report their flight plans to Chinese authorities. Additionally, China claimed that it would defensively respond to aircraft that refused to follow these procedures.

Three days later, the United States flew two unarmed B-52 bombers over the islands, which lie within the new Chinese air defense zone. The United States claimed that the flyover was part of a training exercise. The United States conducted the exercise following its normal procedures, which disregard China’s new requirements for aircraft entering the zone. China has not directly responded to the actions of the U.S., but claims that the new air defense zone is a proper exercise of its right to self-defense and territorially integrity.

The institution of the Chinese air defense zone and the United State’s flyover of the Diaoyu/Senkaku islands demonstrate that tensions over the disputed islands are escalating. These events come on the heels of a recently released statement by the United States about its focus on enhancing security in the Asia-Pacific region through increasing the presence of U.S. forces. With a larger U.S. presence in the region, and with an already strained relationship between China and Japan, a diplomatic resolution is needed sooner rather than later. In fact, a peaceful resolution to the Diaoyu/Senkaku dispute could help build a bridge to better relations between all parties involved.

 

Lincoln Puffer is a 3L and is the Cite and Source Editor of the Denver Journal of International Law and Policy

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Critical Analysis: China and a Clean Energy Future

When Chinese authorities fired up numerous coal-fired power plants in the northern province of Heilongjiang, a dense cloud of smog descended upon the city of Harbin.  As air pollution soared high above what the World Health Organization deems “safe”, schools, airports, and roads shut down.  With winter descending, people are left wondering whether smog clouds will become more common.  Harbin’s smog cloud was not the first incidence of extreme air pollution in China’s cities.  Beijing has become known for its heavy air pollution and garnered world attention last January when off-the-chart levels of air pollution were recorded during what news sources called “airmageddon.”  Although there are several reasons for smog clouds such as those covering Harbin and Beijing, the main culprit is coal, China’s main source of energy.  To stem the pollution problems, and the environmental and society issues that arise alongside them, China has pledged to move away from coal to other, cleaner, sources of energy.

Northern China smog shuts down roads, schools, and airlines. Source: Reuters

Northern China smog shuts down roads, schools, and airlines. Source: Reuters

Globally there is no consensus as to what our energy future should look like.  Ideally, we will move away from burning fossil fuels entirely, but for now natural gas is seen as a good transition fuel.  In the United States, a shift from coal to natural gas has brought about a decrease in carbon dioxide emissions.  China’s pollution reduction pledge includes switching from coal to natural gas, but it will take years, maybe decades, for China to achieve energy changes, similar to those the United States is currently undertaking, due to chronic shortages of natural gas[G1]  in China.  China does not have the same domestic natural gas production levels that are aiding the U.S.  shift to cleaner fuel.  A current boom in U.S. natural gas production is keeping domestic natural gas prices in the United States at a fraction of the prices in Europe and Asia.  This price disparity is leading many to push for U.S. exports of natural gas, which would be an economic boon to the United States while creating a more competitive global market for natural gas.

Energy security and politics go hand in hand.  This week the Guardian newspaper declared that Russia and Ukraine are inching closer to a “gas war.”  Russian state energy giant Gazrom has demanded swift payment by Ukraine of $882 million in gas debt.  Some say this demand is politically motivated by Russia’s displeasure with Ukraine creating closer political ties with the European Union.  The pipelines running through Ukraine help supply Europe with natural gas, so political squabbles between Ukraine and Russia could jeopardize Europe’s gas supplies.  Should the United States begin exporting natural gas, the increased economic competition could alter the political relationships between countries that have grown up around current gas supplies.

Natural gas is not China’s only option for a cleaner energy future.  In addition to pledging to increase use of natural gas, China has also pledged to increase the use of renewable sources of energy, such as solar and wind power.  Moving away from fossil fuels is something many nations share in energy development.  Japan recently began a project to construct 140 offshore wind turbines by 2020 to add to the nation’s energy supplies in light of rising oil prices and concerns over nuclear power.  Japan’s new turbines are expected to create the same amount of energy generated by a nuclear reactor.  The United Kingdom recently gave the go-ahead to a new nuclear power plant, the first to be built in a generation.  China currently has seventeen nuclear power plants in operation and dozens more under construction.  Although nuclear power carries many concerns, increases in this energy source could also reduce the air pollution blanketing China’s cities.

China’s smoggy cities provide a clear example of the global energy problems.  While not all countries face the problems associated with dense smog clouds like those in China, the changing energy use in China tracks with global changes in energy use.  For China, like the rest of the world, the increased demand for natural gas will carry environmental, economic, and political changes.  Already we are seeing how the reliance on natural gas globally is altering international relationships on both political and economic fronts.  However, from an environmental standpoint, natural gas cannot be the final solution.  It is still a fossil fuel.  Non-fossil fuel and renewable energy sources should play a large part in China’s energy future, as they should globally if the full extent of the pollution problems are to be addressed.

 

Laura Wood is a 3L and the Senior Managing Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: The Internet: The Land of the Free?

“The Great Firewall of China” is well-recognized around the world as referring to China’s closed-internet policy.  Edward Snowden’s leaks advertised to the world that privacy online in America is more of a myth than an actuality.  But perhaps all of this is just leading to the next stage of internet freedom – not actual freedom, but more transparency in how the internet is being monitored.

A woman sits in a cybercafé in Beijing. Photo: Dan Chung/The Guardian

A woman sits in a cybercafé in Beijing. Photo: Dan Chung/The Guardian

Beijing News recently released a report that more than two million Chinese people are employed by the government and private companies to monitor web activity.  These “internet opinion analysts” are hired to search through opinions related to particular key words, gather the opinions, and then compile reports on these opinions.  However, a previous study indicates that these internet opinion analysts do more than just report on opinions.  This study of one specific site, Sina Weibo, discovered that these monitors will also delete posts that include particular keywords or that are posted by frequently-censored users.  Some of the most commonly censored topic during this thirty day study included “support Syrian rebels,” “judicial independence,” “one-child policy abuse,” and “human rights.”

Censorship in China is based mainly on government laws. The Sina Weibo study, for example, understood that “[i]f Sina Weibo had insufficient controls, the government may take action against the company.  If their controls were too rigid, users might abandon them for one of their competitors.” China is not the only state that uses laws, regulation, and general technology to regulate and monitor internet-use by its citizens.  Iran uses filtering and slow connections to attempt to censor internet use.  India actually has laws against monitoring, but apparently the government has violated its own rule by monitoring the activities of almost 160 million Indian internet users.  And of course, the United States’ NSA monitors the internet activity of millions of Americans.

Perhaps instead of using national laws to inhibit freedom on the internet through censoring or monitoring, as has apparently become the trend over the last three years, it is time to promote privacy instead.  While the UN’s International Telecommunication Union (ITU) recently attempted to negotiate a new treaty for states to sign, the treaty focused more on the rights of governments in telecommunications than individual privacy rights.  If the UN is not helping to promote an international standard, it may be best for a state or group of states to design a Model Law for states to adopt to promote internet privacy.  If a Model Law existed and was shown to be effective for some states, other states, that hold onto monitoring and censoring as necessary for security, would see a viable – and more politically palatable alternative.

Until then, China might at least be making strides in being more frank about how it is monitoring its citizens.  Although a long way from a lack of censorship, this could be a very important step towards more internet privacy – hopefully one that other states will be willing to adopt.

Samantha Peaslee is a 2L at Sturm College of Law and Managing Editor for the Denver Journal of International Law and Policy.

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Chinese urban center

Critical Analysis: China’s ‘Rebalancing’ Through Urbanization

Chinese officials recently announced their intention to move 250 million rural residents into cities over the next decade in an effort to reform China’s economy. The goal is to create a new class of urban consumers and increase demand domestically, thereby making economic growth more sustainable. The policy follows in the footsteps of previous actions by the Chinese government to expropriate farmers’ land for development while providing little to no compensation. This mass urbanization could prove to be similarly controversial.

Chinese urban center

A Chinese man in the shadow of the future for rural peasants (Reuters)

China’s economic success in sustaining economic growth through the last decade has been based primarily on exports. It accomplished this by a combination of low wages, currency controls, and investment in manufacturing, in turn becoming the world’s largest exporter in 2010. Recent forecasts have predicted that China’s growth will slow in the next few years, prompting officials to seek a more sustainable economic strategy, termed ‘rebalancing’. Urbanization, or relocating peasants to urban centers, is a highlight of the new strategy. The idea is that by providing rural farmers with apartments in cities, they will find better paying jobs and become a new consumer class, thereby increasing domestic demand and allowing China to be less dependent on exports. The plan is not without its drawbacks.

Problems have already arisen in this process. Jobs are not readily available for the unskilled peasant class, forcing laborers to take jobs significant distances from their subsidized housing. Urban living also has a higher price tag than a rural lifestyle, requiring a substantial portion of income for utilities and basic necessities like heat and electricity. Of course, farmers have no leverage in this process as urban land is owned by the government and rural by local farmers collectively. Without sufficient property rights, farmers are dependent on the meager subsidies provided by the government once moved into the city, while the market value for land is not truly reflected in the costs for development, leading to inefficiencies in land use and availability.

The last time China attempted economic engineering of this scale was in 1957 with Mao Zedong’s Great Leap Forward. Rural peasants were responsible for providing the food supply for the country’s rapid modernization as well as laboring in heavy industry like iron and steel in backyard furnaces. The result was the largest famine death toll in world history. While technology and improved planning would hopefully prevent a recurrence of famine, there are nonetheless several flaws in China’s urbanization plan. The most glaring is that consumption growth follows an increase in disposable income, which will not occur if wages continue to be suppressed by maintaining a surplus of unskilled labor in the market. Unemployment could lead to discontent and, in turn, a more organized opposition to the Communist parties as farmers are already the most vocal opponents to government actions. Additionally, emphasizing consumption rather than investment in innovation or technology will limit the future growth of the economy.

There is little doubt that China’s economic strategy must adapt to a more sustainable model, although it is yet to be seen whether urbanization will result in continued subsistent existence for peasants or a new era of prosperity. Along with environmental concerns and an aging population, China has its work cut out for it.

Alex Milgroom is a rising 3L at the University of Denver and the Online Editor-in-Chief of the Denver Journal of International Law and Policy.

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