China as the New Hegemon

“China’s Arctic Ambition” on the Trade and One Belt One Road Panel. Left to right: Thomas S. Axworthy, D’Arcy White (2L), Gil Lan. Not pictured: Cyndee Todgham Cherniak, Julia Qin. Photo credit: Maisy Tsui

February 27, 2019 by Emily Tsui

Report on the Sixth Annual China Law Conference

For the past six years, the China Law Group has held an annual conference and organized a student-led discussion group on current issues related to the law in China and to China in international law. The annual Conference is unique in Canada: it is the only venue that brings together international and Canadian scholars and  students to discuss these subjects. Each year, the students of the China Law Group select the topics of the conference based on pressing issues in Chinese law and in Canada-China co-operation.

Recent reports of Canadians kidnapped in China, large-scale detention camps of Uyghurs in Xinjiang, and extensive dredging activity in the South China Sea have captivated the attention of many Canadians over the past few months. The China Law Group saw this interest manifest in the outstanding attendance at the Sixth Annual China Law Conference, held on Saturday, February 2, 2019, at the Faculty of Law. Over 140 individuals, including University of Toronto students, law students from across Ontario, and residents of the the Greater Toronto Area, attended throughout the day. The three panels discussed the South China Sea Dispute, Trade and China’s “One Belt One Road” Initiative, and Human Rights and Ethnic Minorities of China. Twelve experts from across North America delivered presentations and answered audience members’ questions.

Panel One: South China Sea Dispute

Set within the vague boundaries of nine dashes drawn in an U-Shape on a 1947 map, China’s claim in the South China Sea is nothing short of ambitious. The Sea is strategically and economically important to the global economy: over $3 trillion USD of trade passed through the Sea in 2016, including over half of the world’s oil tanker traffic. Chris Chung, a PhD candidate from U of T’s Department of History, remarked that, for China, this Sea is also significant to its national identity. Chung noted that this view is reflected in China’s position that it has “historic rights” in the area.

Canada also uses the “historic rights” argument to assert its position over the Northwest Passage in the Arctic. But the force of that argument in international maritime law is unclear. In her helpful explanation of the United Nations Convention of the Law of the Sea (UNCLOS), which governs waterways and the high seas, Elizabeth Riddell-Dixon, Professor Emerita from the Department of Political Science at Western University, noted that while the UNCLOS is a comprehensive treaty, it makes no mention of “historic rights.” If China were entitled to exercise sovereignty over the Sea, its construction activities of building islands and military bases would have been legally permissible, provided those activities would not interfere with the ability of other states to transit in the Sea.  As things stand, it is unclear how China’s assertion of “historic rights” rights affects its legal rights in the area.

That issue came to the fore in the Permanent Court of Arbitration’s 2016 decision of Philippines v China, which focused on the legal status of the features in the Sea. In an engaging lecture, Ted McDorman, an internationally renowned maritime law scholar from the University of Victoria, recounted that the arbitral tribunal’s decision made it clear that China’s actions in building islands gave it no additional legal rights, and could not generate exclusive economic zones. On almost all issues raised before the tribunal, China lost.

China did not appear before the arbitral tribunal, stating that the tribunal lacked jurisdiction. China saw the question of its rights in the Sea as a political issue, not a legal one, and therefore beyond the reach of the tribunal. Although McDorman believes that China’s legal argument has merit, he also believes that the country’s decision to not appear before the tribunal was primarily a political statement. Regardless, Nong Hong, the executive director of the Institute for China-America Studies in Washington, pointed out that China’s non-appearance was not without precedent. For instance, Russia did not appear in the Arctic Sunrise case, and neither did the United States in Nicaragua v United States.

According to the panelists, it is likely that the Philippines’ dispute with China will remain legally unresolved as China continues its dredging activity. Any resolution is likely to be a political one.

Panel Two: Trade and One Belt One Road

China’s “One Belt One Road” Initiative (OBOR) is a global economic development plan that aims to engage up to 68 countries with one third of the global GDP, 70 per cent of the known oil reserves, and nearly two-thirds of the world’s population. Thomas Axworthy, Chair of Public Policy at Massey College, explained that these ambitions have global reach, including the Arctic region. Gil Lan, Professor of Management at Ryerson University, argued that the Chinese view themselves as a returning, not ascending, superpower, and OBOR is symbolic of this perception. However, for investors and countries to have confidence in OBOR, there must be credible dispute resolution mechanisms. It is presently unclear how China might react to unfavourable rulings.

In response to OBOR, nervous of China’s economic influence, the United States has placed what Lan called a “poison pill” within the text of the United States-Mexico-Canada Free Trade Agreement (USMCA), and has taken steps to place Canada squarely on the side of the US. If Canada negotiates a trade deal with China, a non-market-economy third country, Canada may be kicked out of the agreement.

If this provision was not sufficient to keep Canada’s support, the US is carrying on a trade war with China and has issued an arrest warrant for Huawei’s CFO. Cyndee Todgham Cherniak, founding lawyer of LexSage, believes that these actions may have drastic consequences for Canadian businesses. She offered practical advice for companies working in China or with Chinese companies, such as adopting verifiable compliance procedures for export control laws and updating government contact lists. It is now especially important for individuals to ensure that their business activities comply with domestic trade laws.

Julia Qin, law professor at Wayne State University in Detroit, argued that the US feud with China—although aggravated by OBOR—really finds its origin in a technological rivalry. The US believes that China engages in state sponsored cyber theft of US intellectual property through forced technology transfers in contravention of section 301 of the 1974 US Trade Act and World Trade Organization commitments. Forced technology transfer is a government market-access condition that requires a foreign person to transfer technology to a domestic company as a condition for doing business in the country. American firms are increasingly doing business in China, and they are wary of China’s monopsony power that could deprive them of their profits.

Ultimately, China’s growing economy poses both opportunities and challenges. OBOR is an opportunity for underdeveloped states and regions to gain access to capital. In addition, China’s large economy presents huge potential profits for Canadian and American businesses. At the same time, the US’s restrictive trade measures and anti-China stance damages investor confidence in both markets, as does China’s long-standing practice of forced technology transfers.

Panel Three: Human Rights and Ethnic Minorities of China

The detainment of over one million Uyghurs, a Muslim ethnic minority in China, in Xinjiang’s “open air prisons” demonstrates China’s heavy handed control over minorities in no uncertain terms. Individuals have been detained for activities as innocuous as abstaining from cigarettes or eating breakfast before sunrise.

China uses both high technology and rudimentary surveillance techniques to monitor the Uyghur population. These actions are intended to destroy the Uyghurs’ cultural heritage and to force their assimilation into Chinese culture. The result is what Louisa Greve, Director of External Affairs of the Uyghur Human Rights Project in Washington, DC, calls a “laboratory of oppression” in China.

Given these mass human rights abuses, many Uyghurs are fleeing China. However, the Chinese government has largely refused to issue or renew passports, rendering these individuals stateless. Mehmet Tohti, a Uyghur human rights activist, notes that stateless individuals are entitled to certain legal protections under the 1954 UN Convention Relating to the Status of Stateless Persons. Those protections include freedom of religion and education of their children to the same degree as citizens. Yet the Convention’s limited ratification constrains its force in influencing states’ behaviour.

Chinese control over its minorities does not end at its borders. In a compelling presentation by Masashi Crete-Nishihata, Director of Research at the Citizen Lab, it became clear that China monitors the online activities of Tibetan diaspora through a cheap and simple method. Setting up a program to send emails with links or attachments infected with malware cost about USD $1,000. The trick to the programs’ success was social engineering: crafting emails enticing enough for individuals to open them. At the same time, protecting people only requires the basic education to not open suspicious emails. Ninety-five per centof attacks have been thwarted that way.

China’s control over its population extends to Hong Kong as well, the most prosperous and liberal region of the country. Alvin Y.H. Cheung, JSD Candidate at New York University, discussed the recent history of the Chinese state suppressing the freedom of expression in Hong Kong. In 2014, the Yellow Umbrella movement demanded greater freedoms for the population, and soon after the Hong Kong National Party (HKNP) was formed. In 2018, the Chinese government banned the HKNP. The government had four justifications: first, advocating for independence is against Hong Kong’s Basic Law; second, freedom of speech does not cover calls for independence; third, self determination is the equivalent of independence, which is not permissible; and fourth, the right to advocate independence is tantamount to advocating for independence.

Tohti and Greve observed that the international response to China’s various human rights abuses has been muted. This is most likely due to the China’s economic influence—a sort of “cost of business” dilemma. However, there is reason to be optimistic. International attention to the Uyghur detention crisis is growing, and countries are increasingly calling on China to halt its oppressive tactics.

Conclusion

Although the China Law Conference focuses on China, this year’s talks demonstrated that China’s rising position has implications for Canada. Whether it is Canada’s “historic rights” claim over the Northwest passage, global trade relations, or human rights obligations, understanding China is vital for Canada’s own legal interests. In a globalized legal market, Canadian law students must do more to learn about China. It is absurd that Canada’s best law school does not offer more programming—outside of a student-run group and conference, and one intensive course—for students to explore the Chinese legal system and China’s role in international law.

The China Law Conference is a crucial initiative to bridge this knowledge gap, and is only made possible because of several key supporters. The China Law Group is extremely grateful to our faculty advisors, Professor Hamish Stewart and Professor Sida Liu, who were instrumental in securing funding, speakers, and assisting us in all parts of the club. We are also grateful to the following conference sponsors, who support us every year: Bennett Jones, McMillan, Sullivan & Cromwell, Jones & Co, Scotiabank Fund at the Faculty of Law, Asian Institute at the Munk School, UTSU, and SLS.

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