Tag Archive | "sovereignty"


China’s Trap in the Waters Around Guam

Photo Credit: UNCLOS, CIA

The beginning of August 2017 saw the United States and the Democratic Republic of North Korea (DPRK) trading rhetoric that appeared to threaten nuclear war. It is possible, however, that the entire situation was an international legal trap laid for the United States. What at first instance appears to be two irrational state actors threatening nuclear war may instead have been a plan to undermine U.S. interests in the western pacific and to bolster China’s claims of sovereignty over its expansive view of the waters in the South China Sea.

The rhetoric between the two states, and, in particular, the specifics of the threats hurled between the two states provide important clues.

On one hand, the United States gave few specifics, but threatened to end the DPRK regime, to destroy its people, and to unleash “fire and fury” on the peninsula.

On the other hand, the DPRK’s statements were specific. They might, at first blush, appear to give the United States whatever justification it might need to justify a preemptive attack against Pyongyang. After all, it did say that it was considering enveloping Guam in fire with ballistic missiles. However, in later providing its specific plans to launch four missiles set to land 30 to 40 kilometers (roughly 19 to 25 miles) off the coast of Guam, the DPRK may have laid a trap for the United States. By providing specifics, the DPRK simultaneously increased the heat of its rhetoric and pulled away any legal justification the United States might have to attack the DPRK, even under the specious Bush-era arguments for preemptive attack.

This is so because the DPRK’s statement arguably did not threaten the territory of another State. The DPRK specifically stated that it would target the missiles to land in the contiguous zone, i.e., international waters, near Guam. In doing so, the DPRK’s statement was clear that its missiles were not intended for the U.S. mainland, Guam, or even U.S. territorial waters (which extend only 12 miles offshore).

UNCLOS defines the contiguous zone as a zone of waters between 12 and 24 miles off shore. The contiguous zone is beyond the territorial waters, which extend 12 miles past the shore, and is part of the Exclusive Economic Zone (EEZ), which extends 200 miles offshore. As a part of the EEZ, the contiguous zone is considered “international waters” wherein states have limited sovereign rights in contrast to “territorial waters,” where a state retains most of its territorial rights and jurisdiction. In the contiguous zone, between 12 and 24 miles offshore, a state has the right to “prevent infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its territory or territorial sea;” and to punish infractions of these rules. These rights also include the rights of the EEZ, which almost entirely revolve around the rights of mineral extraction and fishing. For the purposes of use of force and self-defense, however, the contiguous zone and the EEZ do not constitute the territory of a state.

The U.N. Charter prohibits the use of force except in the case of self-defense or U.N. Security Council approval (preemption, responsibility to protect, and other justifications for force are almost always backed up with additional arguments for why the proposed use of force is not a violation of Article 2). The text of article 2 specifically prohibits “threat[s] or use of force against the territorial integrity” of another state.

The rights of states are severely limited in their contiguous zones and EEZ. However, China has attempted to assert expansive rights over the South China Sea including some territorial rights in its contiguous zone and EEZ, as well as an expansive definition of its EEZ based on various outcrops of coral to which it lays claim, such as the Spratleys.

The United States, China’s neighbors, and the international community at large have consistently held that China does not have territorial rights in the areas more than 12 miles off its coasts and that some of the islands, many of which China has built up into actual man-made islands, are not “islands” for the purposes of defining China’s waters under UNCLOS. Indeed, during the war of words between the United States and DPRK, the USS McCain sailed through the South China Sea in a freedom of navigation operation in protest of China’s argument of territorial control over the water around the Spratleys.

China’s announcement of its neutrality in this matter should thus be viewed suspiciously. China’s agreement with the DPRK is that it is not obligated to participate in wars that the DPRK starts. If the missiles fall into international water, and the United States were to react by attacking the DPRK, China would be able to frame the event in a way that cast both the DPRK’s actions as an act of aggression, removing their obligation to join in self-defense, and the U.S. attack as an illegal overreaction to an act that never touched U.S. territory.

Chinese neutrality should thus be read as one giving the DPRK notice of the consequences of hitting U.S. territory or territorial waters, and not that China will not help Pyongyang retaliate against the United States if the missiles were to fall harmlessly into Guam’s contiguous zone. With its statement of neutrality, China gives the Trump administration and U.S. public hollow reassurances, and a direct warning to Pyongyang not to miss its mark.

There were at least two possible scenarios where China would emerge as the victor from this interaction:

  • There was no attack but the United States asserted ultra vires territorial rights in international waters

In this scenario, by threatening an act which did not extend to the territory of the United States, the DPRK would incite the United States to assert territorial rights over the international waters around Guam. This U.S. assertion of rights immediately bolsters China’s claims in the South China Sea and increases the possibility that China may justify the use of force against U.S. vessels attempting freedom of navigation operations through Chinese claimed waters. In this scenario, any U.S. attempts to hem in China’s illegitimate and illegal territory grab in the South China Sea is undermined by U.S. statements in response to the DPRK.

  • The DPRK launched its missiles and they landed in international water, the U.S. retaliated with an attack on the DPRK

In this scenario, the above also comes to pass but the DPRK demonstrates conclusively that while it may be a rational actor it is also China’s patsy in its aspirations for global power. If the United States were to follow through with an attack on the DPRK, China would be the state with both the moral and legal high ground to begin to build a coalition against the United States in the international community. We can assume that this is already happening as China moves to expand economically into Africa and South America, but a catastrophic event such as an attack on the DPRK would serve to immediately crystalize resistance to U.S. actions worldwide. China, and, to a lesser extent, Russia would see immediate and long term gains from such a scenario while the United States would find itself alienated from its allies, not least of which, South Korea, which would bear the brunt of the DPRK’s response.

Each of these scenarios reduces American power, both militarily and diplomatically, around the world. They increase China’s position in the world and push away allies and potential allies against China and even the DPRK.

As of this writing, it is relatively fortunate that only the first scenario has come to pass, but in asserting expanded rights in the Contiguous Zone, the United States has still given China ammunition to use in the next flare up over the South China Sea.

The only rational way forward is for the United States to reduce the temperature of the rhetoric and to attempt diplomatic solutions while also challenging China’s broad assertions of rights in the South China Sea. Using force against the DPRK or asserting territorial rights in Guam’s contiguous zone undermine U.S. policies and interests in both arenas.

In the end, though, the United States must recognize the limits of knee jerk reactions and bluster and take full advantage of the capabilities of U.S. diplomatic assets in the State Department and in other agencies. The problems that the United States faces do not all come with military solutions, and issues of international relations and policy that appear simple on their face seldom are in reality. As the saying goes, the United States needs to be playing chess, not checkers, and never more so than when nuclear weapons are involved.


William Kent is a 2014 graduate of the Sturm College of Law and holds a J.D., Masters of Law in International Business Transactions, Certificate in International Law, and Masters in Middle East Studies.  He currently lives in Washington, D.C.

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EU Crisis - Boheme

Schengen Fails Under Weight of Migrant Influx as Sovereignty Trumps


The migrant crisis is forcing tensions between the free-movement created by the Schengen Agreement and notions of state sovereignty.  The crisis has brought into questions of European solidarity as countries force migrants from one country to the next.  In practice the EU’s Dublin Regulation, which requires that a migrant’s asylum claim be processed in the European country where he/she first arrives, has been de facto suspended.  Some have suggested, which this author agrees with, that the Dublin Regulation needs to be completely revamped to respond to the current crisis.

Just this weekend, the Hungarian government has accused Croatia of breaching international law by failing to register migrants.  At the same time, Hungary is currently building a razor wire fence in an attempt to stem the flow of migrants into the country.  Additionally, a number of migrants who reached Austria via Hungary have told the BBC they had not been registered in Hungary either, simply driven in buses across the country and told to walk over a railway line into Austria.

Meanwhile, in the last 24 hours, Austria has seen the arrival of tens of thousands of migrants.  Migrants were sent first to Hungary by Croatia, who stated it was unable to accommodate the 20,000 plus migrants who had arrived since Wednesday. While initially welcoming them, Croatia later state said it was unable to cope, sending them to Hungary.  Hungary then turned to Austria, while accusing Croatia of breaking rules by failing to register migrants.

EU Crisis - Boheme
Migrants queue as they wait to board a regional train at the main railway station in Munich, Germany. (Reuters)

Countries like Germany, which have welcomed refugees and have offered to take in records numbers of migrants are now finding that such offerings are untenable.  In his State of the Union speech on 9 September the EU Commission President, Jean-Claude Juncker, called free movement under Schengen “a unique symbol of European integration”.  However, such integration is now being tested.  While Mr. Juncker called for “better joint management of our external borders and more solidarity in coping” with the influx, the reality is that few countries have demonstrated solidarity in order to find a durable solution to the crisis.

While EU nations desperately guard their sovereignty and shift the burden from one country to the next, the conflicts in Syria, Iraq, Afghanistan, Libya and Eritrea continue raging, forcing migrants to choose between enduring extremely dangerous and dire situations at home, or leaving their homes and embarking on perilous journeys towards what they hope will be safety. Illustrating the dangers many migrants face in their flee towards safety is a recent warning from Croatia of the risk of landmines if migrants venture off the main roads in border areas, where Croat and Serb forces clashed in the early 1990s. Yet many migrants are still reported to be entering Croatia across those dangerous fields in an attempt to bypass border controls.

One migrant who made it safely to Austria told the Associated Press, “I feel like I’ve been born anew. It makes no difference whether I am delayed, whether I stay here two days. The important thing is that I’ve finally arrived and that I am now finally safe.”  However, the travel options for migrants remain dangerous, with the Greek coastguard reported that a five-year-old girl died when the boat taking her from Turkey to the Greek island of Lesbos sank, and at least 13 other migrants on board are missing.

What is clear is that the conflicts in countries such Syria, Iraq, and Afghanistan shows no signs of stopping, and as a result, migrants will continue to seek safe haven in Europe.  With attempts such as the EC’s recent proposal for mandatory quotas to distribute 160,000 migrants EU-wide being rejected, countries need to do much more to address this issue which will not disappear any time soon.  However, the problem is incredibly complex, as migration expert Demetrios Papademetriou, president of the Migration Policy Institute Europe has suggested.

Papdemtriou stated recently that to address the migrant crisis, Europe will have to invest in creating real opportunities for refugees so that they can stay in neighboring countries, make a livelihood, get an education, and access health services. He suggests further that Europe should work with countries that are a launching pad, by targeting three or four key countries on the pathway from countries experiencing large patterns of migrations, and do as much as it takes to get their cooperation — to stop traffickers, to create opportunities for people to stay, and create a safe pathway.  This of course requires the cooperation of European countries and governments, something that has been in short supply during the crisis.  This is not to oversimplify the fact that governments have genuine security concerns, and real concerns regarding resources both economic and otherwise, and this crisis is incredibly complicated.  There is no “easy” solution.  However, what this situation requires is a strategic response, which cannot be achieved without the cooperation of affected countries, including a possible revamp of the Dublin Regulation and an open dialogue on the functioning of the Schengen Agreement within the framework of the current crisis.

Emily Boehme is a 3L at University of Denver Sturm College of Law and Senior Managing Editor on the Denver Journal of International Law and Policy.

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Intervention: Altruistic Benevolence or International Tyranny?

John Donne famously declared, “[n]o man is an island.” Similarly, “no state is an island,” as states are inevitably impacted by the actions of others. But does this mean that any connection, however attenuated, justifies one state’s interference with another? Is this kind of interference ever justified? Is there ever an obligation on states to commit just this sort of interference?

(courtesy of K-State IMI data)

Historically, the line that divided benevolent intervention from tyrannous interference was the consideration of whether such interference was necessary to protect a state’s “vital interests.” While the standard of “vital interests” is itself an amorphous concept, the greater concern is whether it is an appropriate standard in the first place. Might not atrocity permit, and perhaps even require, those states with the ability to interfere to do so?

As early as 1933, the Montevideo Convention on the Rights and Duties of States illustrated the efforts of the international community to establish limits on the extent to which countries could interfere with one another. Article XI explicitly provides that “[t]he territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.” Similarly, Article II of the United Nations Charter, passed in 1945, states that “[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of [a] state.” The general trend at this time appeared to favor non-interference, considering the sovereignty of a state to be absolute.

The Universal Declaration of Human Rights (UDHR), adopted in 1948, suggests a divergence from this mode of thinking. In its prohibition of genocide and war crimes, the UDHR proclaims that it is the responsibility of nations to ensure the “universal and effective recognition and observance” of human rights. However, the implications of this agreement remain abstruse. Is it the responsibility of each state to guarantee these rights only within their own borders, or is it incumbent upon each state to ensure that all other states also adhere to the UDHR? By what guiding principle is a state to adjudicate this dilemma born out of ambiguity and vacillating standards?

The difficulty lies in the collision of sovereignty with the prevention of atrocity. Interference constitutes a breach of sovereignty and it seems that any subsequent agreement made due to such interference would fail to be legitimate. An additional concern therefore is that it would be no mark against the state which violates an agreement made under such duress. But perhaps such a violation of sovereignty is required in the face of large-scale violence. In this context, the question of how many lives a state’s sovereignty is worth remains a haunting question.

While the United States has established that amongst their citizens there is no legal duty to rescue, perhaps a different standard is called for in the international arena. Current international law appears to leave both options open: vigorously protect human rights within one’s own borders only, or unequivocally engage atrocities both foreign and domestic. The burden of this decision rests with the various states as they determine their own statuses in a multifarious world, as there does not appear to be a clear legal answer.

As states struggle to determine precisely what influence they wish to exert, perhaps a guiding principle can be discerned from the Declaration of Independence signed at the birth of the United States: “when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government.” If the United States, or any other state, truly believes all people possess a duty to oppose a certain kind of cruelty, it would seem that the answer is clear: violations of human rights are intolerable. Yet the burden remains with each state individually to determine when and how to intervene, as the legal question of whether interference constitutes benevolence or tyranny remains an open one.

Cameron Hunter is a 3L law student and second year master’s student at the University of Denver and is the Survey Editor of the Denver Journal of International Law and Policy.

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Where Does Outer Space Begin?

A state’s jurisdiction once went from the depths of Hell to the heights of Heaven.  Airplanes challenged this tradition, and satellites ended it.  Since then, the upper limit of a state’s sovereignty has been long debated.  Today, there is a distinction between airspace—where a state is sovereign—and outer space—which is res communis.  Despite the distinction, there is no legal barrier delineating where air law ends and space law begins.


Are we in outer space yet?

Although some states have called for a definition of where outer space begins, the United States is ambivalent on setting that border.  As the US Delegate made clear to COPUOS, the US sees no practical reason to set a barrier.  Because it sees no practical need for an air-space border, the US was concerned that making an arbitrary decision that would—as technology advances—become unworkable.

While it is true that air law and space law have worked well in their independent spheres, advancements in technology may force a decision as space becomes more accessible and more frequently used.  Although the technology argument has been used since at least 1975 as an excuse to hold off on making a decision, the point may soon arrive where this distinction matters.  Scholars developed two schools of thought to delineate a boundary.

Spatialist v. Functionalist

The “spatialist” approach sets the boundary for where outer space begins. Anything above the line is in outer space; anything below is in air space.  Basing this delineation on natural phenomena is difficult because there is no rigid barrier between the atmosphere and outer space.  The atmosphere does not simply just end and give way to the vacuum of outer space.  Indeed, basing the air-space barrier on any atmospheric (when the atmosphere no longer protects against ultra-violet radiation or cosmic rays), chemical (when liquids evaporate), physiological (when there is no oxygen in the atmosphere), or aeronautical (when air is no longer dense enough to support lift or when air resistance is negligible) definition would not provide certainty.  All of these points depend on properties of the atmosphere, which depends on myriad fluctuating variables.

If a spatialist approach is adopted, the boundary should be set at an arbitrary altitude.  Unlike the aforementioned barriers, there would be no ambiguity or variability in the limit.  This approach also has the benefit of state practice to lend it credence.  However, despite several states have set an altitude limit in their domestic space legislation, there is no consensus about what that altitude should be.  Over the years, however, states—following the emerging scientific consensus—are converging on an altitude of between 100 and 110 kilometers above sea level.

The “functionalist” approach disregards physical characteristics of a barrier in favor of basing the distinction on the space object’s purpose.  It recognizes that air law and space law were designed with certain activities in mind and applies that law to the activity, regardless of where that activity takes place.  In effect, it applies space law to space activities, such as satellite launches, and air law to aviation activities.  The problem with this regime, however, is that some activities—such as suborbital flights—can be characterized as both an air and space activity.

Does This Distinction Even Matter?

Not yet.  In the vast majority of cases it is clear which legal regime applies.  However, Virgin Galactic’s successful test of its suborbital spacecraft on April 29 (and let’s not forget the other companies nipping at Virgin’s heels) means that this distinction will matter soon.  Specifically, Virgin’s plan is to launch its customers 110 kilometers above sea level.  Yet, the most current suborbital flight plans take off from and return to the same site.  But future suborbital flights are intended to be a rapid means of transportation.

Zero Gravity Tourists

“But then are we astronauts?” That’s for another post, my friend.
(Destination 360)

Ultimately, the functionalist approach provides the most effective and practical regime.  This approach is commendable because it treats like subjects alike: suborbital flights, which are more analogous to civil aviation than to traditional spaceflight activities, are governed by air law and “traditional” spaceflight activities use the space law regime.  For suborbital spaceflights, this makes particular sense because, like civil aviation, it is a commercial carrier conveying paying passengers from departure to destination.  Although suborbital activities reach an altitude that would likely qualify as outer space under the spatialist approach, suborbital flights do not share many qualities of a traditional space activities.  Air law has several decades of experience on space law at resolving liability, regulating transit, and protecting passengers.  Why not let it do what it does best?

Dan St. John is the Denver Journal of International Law & Policy’s outgoing Online Editor in Chief.  He founded the Space Law Society at DU Law, participated in the Manfred Lachs Space Law Moot, and intents to work in space law.

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The Great Wall of China

Chinese Perspectives Part 3: Sovereignty

“In the Five Principles of Peaceful Coexistence, the principle of sovereignty ranks first.  It is the main principle to which the other four principles are related.  It is linked to territorial integrity and supplemented by the principles of non-intervention and non-aggression.  Equality and mutual benefit is the concrete expression of the sovereignty of a State, while peaceful coexistence is premised upon the respect of the sovereignty of states.”

This passage from Wang Tieya’s 1984 course illustrates the primacy of sovereignty in the Chinese model.  It comes as no surprise that China guards its sovereignty so jealously, considering its history of international relations.  China sees its sovereignty as being threatened by Western powers and considers this threat to be an affront to the fundamental principles of international law.  The theme of sovereignty was just as manifest in Judge Xue’s 2011 lecture as it was in Professor Wang’s 1984 version.

As Judge Xue stated in her lecture, sovereignty is a “perpetual theme for China, both theoretically and practically.”  China adheres strictly to this principle and its contents, which require “supremacy internally and independence externally.”  In China’s view, sovereignty is and should remain the basis of the world order.

The Great Wall of China

The Great Wall of China

According to Judge Xue, the concept of sovereign equality rejects the existence of supranational bodies.  Thus, the European focus on regional organizations and supranational governance is evidence of a paradigmatic shift away from sovereign equality in favor of world government.  But the attack of sovereignty does not stop at the border of the European Union.  The west’s treatment of developing nations further suggests to Judge Xue that sovereignty is under attack worldwide and requires protection.

Judge Xue stated a belief that the west’s attempts to retain dominance in the formation of international norms and control of international structures are a threat to the sovereignty of developing nations.  This phenomenon, according to Judge Xue, explains the focus on human rights and global governance, the frequent use of intervention to achieve these goals, and a weakening of sovereign equality on the whole.  From the Chinese perspective, intervention of this sort has its historical roots in overt imperialist goals and continues to this day under a different name.  Humanitarian intervention of a failed state has become the norm, regardless of whether the failure is the result of internal armed conflict, economic issues, or human rights violations, as they are properly understood.

From Judge Xue’s criticism of intervention – that it is employed to counter internal armed conflict, economic crises, and human rights violations alike – one can infer that the Chinese issue with the status quo does not lie in the existence of intervention but the indiscriminate use of such intervention.  While human rights violations, “properly understood,” may require third party intervention, countries should be left to handle internal armed conflicts and economic crises as they see fit.  What constitutes a “proper” understanding of human rights violations is a highly contentious question – one that will be left for Part 5 of this series.

None of this is to say that China sees its role in the international community as that of an autonomous outsider.  As Judge Xue rightly noted, no state can act alone, and all states, including China, are bound by treaties that that must be followed in good faith.  Moreover, China interprets the term “treaty” broadly to include memoranda of understanding, joint communiqués, and other instruments lacking the formality of a typical treaty.  China sees an important role for international law in the area of serious international crimes and has made significant contributions in that area.

However, China strongly prefers to deal bilaterally as opposed to multilaterally and insists on negotiating with a state with which it is in conflict before the international community steps it.  It sees international organizations as trying to reshape the international law creation process, silencing the voices of developed countries.

Judge Xue framed the central issue correctly when she said, “The question is, how should states with different systems and values interact with one another on the international stage?”  For her, and for China, the answer to that question lies in sovereignty, which consists of substantive equality free from superpowers, respect for internal political decisions, and mutual agreement on freedom, equality, respect for the environment, and respect for human rights.

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University of Denver Sturm College of Law