The multilateral territorial dispute over the South China Sea has intensified in recent years. In... more The multilateral territorial dispute over the South China Sea has intensified in recent years. In response, some observers endorse the apparent turn to " lawfare " on display in the ongoing Philippines v. China arbitration, conducted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS). Yet the limited subject matter of this arbitration means that it can contribute only modestly to any ultimate resolution between claimants.
Indeed, the Chinese side has argued against tribunal jurisdiction precisely on the basis of the primacy of questions over territorial sovereignty—which are barred from UNCLOS proceedings—to the determination of all other legal issues being contested between the parties. This Article assesses the merits of these and other major objections to the UNCLOS arbitration and proposes a supplemental legal mechanism: an international Commission of Inquiry (COI) by involved states, addressing French, Japanese, and other extra-regional states' now inactive claims regarding the sovereign status of the region's various island territories through the end of World War II hostilities in 1945. Such a COI would acknowledge, as the UNCLOS arbitration does not, the centrality of the legal issue of territorial sovereignty to the dispute. Yet by limiting its findings to the islands' contested status during the period of European and Japanese colonialism in Asia, rather than determining current ownership, a COI could nonetheless avoid exacerbating tensions or alienating claimants.
Most importantly, such an approach could serve to establish a narrowed, but still ample, range of possible legal claims and outcomes for further adjudication. Claims based on " discovery " and " conquest " could at least potentially be ruled out, leaving only " cession "-based arguments (the implications of which are considerably less divisive, as they are premised on mutual recognition between equal states). A COI would also be based upon and contribute to a regional " epistemic community " of juridical expertise, furthering transnational civil society ties between claimant states. Finally, the positivistic discourse based on the principle of legal equality pursued by a COI as here proposed could, potentially, more generally dissuade unilateral behavior by individual states, while promoting mutual recognition and cooperative arrangements among regional actors.
Though often viewed as a mere stepping-stone in Japan's gradual early 20 th century military and ... more Though often viewed as a mere stepping-stone in Japan's gradual early 20 th century military and economic encroachment on China, the " puppet state " of Manchukuo was also paradoxically characterized by a high degree of legitimizing legal rhetoric. While its political realities generally failed to reflect these idealized foundations, the latter did provide significant space for legal and other forms of civil society resistance, including by Chinese legal professionals. The germinal resistance movement of these actors demonstrates a complex relationship between the concepts of sovereignty, law, and national affiliation, both in the context of state repression and in the overlapping demands of competing identities. Though various theoretical understandings of resistance help to illuminate this activism, it is perhaps best seen as a radical challenge to the regime's power to define the norms and exceptions of political and social life.
Since the 2013 meeting of Presidents Barack Obama and Xi Jinping in Sunnylands, California, one p... more Since the 2013 meeting of Presidents Barack Obama and Xi Jinping in Sunnylands, California, one phrase has come to define both the vast potential for bilateral cooperation and the failure to realize that potential: the Chinese proposal for a “new model of major country relations” (新型大国关系). While China has presented the concept in terms of “win-win” cooperation, U.S. skepticism has broadly centered on two critiques. First, U.S. policy makers are concerned that associated language regarding “respect for core interests” represents an attempt to procure concessions regarding longstanding differences of opinion on Taiwan, Tibet, and similarly fraught topics. Secondly, the U.S. has made clear its position that bilateral ties “should be based not on slogans but on the quality of the cooperation”: pragmatic, concrete results should come before rhetoric.
This article compares three different ways of understanding this “concrete” dimension of political engagement: 1) Policy “realism,” as manifested in dominant strains of policy analysis in both the U.S. and China that, while distinct, share many important common premises; 2) the “empiricist” positions of those who argue the need to take into account various underlying trends which counterbalance realist considerations; and 3) the more thickly “pragmatic” model proposed here, in which rhetorical factors rejected in the above models are themselves regarded as empirically significant in the conscious development of “public, objective and shared consequences.” Embracing China’s “new model” language may, itself, thus enable otherwise unlikely pragmatic achievements.
Xi Jinping quotes the ancient philosopher Han Fei, and offers possible insights into his politica... more Xi Jinping quotes the ancient philosopher Han Fei, and offers possible insights into his political beliefs.
The multilateral territorial dispute over the South China Sea has intensified in recent years. In... more The multilateral territorial dispute over the South China Sea has intensified in recent years. In response, some observers endorse the apparent turn to " lawfare " on display in the ongoing Philippines v. China arbitration, conducted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS). Yet the limited subject matter of this arbitration means that it can contribute only modestly to any ultimate resolution between claimants.
Indeed, the Chinese side has argued against tribunal jurisdiction precisely on the basis of the primacy of questions over territorial sovereignty—which are barred from UNCLOS proceedings—to the determination of all other legal issues being contested between the parties. This Article assesses the merits of these and other major objections to the UNCLOS arbitration and proposes a supplemental legal mechanism: an international Commission of Inquiry (COI) by involved states, addressing French, Japanese, and other extra-regional states' now inactive claims regarding the sovereign status of the region's various island territories through the end of World War II hostilities in 1945. Such a COI would acknowledge, as the UNCLOS arbitration does not, the centrality of the legal issue of territorial sovereignty to the dispute. Yet by limiting its findings to the islands' contested status during the period of European and Japanese colonialism in Asia, rather than determining current ownership, a COI could nonetheless avoid exacerbating tensions or alienating claimants.
Most importantly, such an approach could serve to establish a narrowed, but still ample, range of possible legal claims and outcomes for further adjudication. Claims based on " discovery " and " conquest " could at least potentially be ruled out, leaving only " cession "-based arguments (the implications of which are considerably less divisive, as they are premised on mutual recognition between equal states). A COI would also be based upon and contribute to a regional " epistemic community " of juridical expertise, furthering transnational civil society ties between claimant states. Finally, the positivistic discourse based on the principle of legal equality pursued by a COI as here proposed could, potentially, more generally dissuade unilateral behavior by individual states, while promoting mutual recognition and cooperative arrangements among regional actors.
Though often viewed as a mere stepping-stone in Japan's gradual early 20 th century military and ... more Though often viewed as a mere stepping-stone in Japan's gradual early 20 th century military and economic encroachment on China, the " puppet state " of Manchukuo was also paradoxically characterized by a high degree of legitimizing legal rhetoric. While its political realities generally failed to reflect these idealized foundations, the latter did provide significant space for legal and other forms of civil society resistance, including by Chinese legal professionals. The germinal resistance movement of these actors demonstrates a complex relationship between the concepts of sovereignty, law, and national affiliation, both in the context of state repression and in the overlapping demands of competing identities. Though various theoretical understandings of resistance help to illuminate this activism, it is perhaps best seen as a radical challenge to the regime's power to define the norms and exceptions of political and social life.
Since the 2013 meeting of Presidents Barack Obama and Xi Jinping in Sunnylands, California, one p... more Since the 2013 meeting of Presidents Barack Obama and Xi Jinping in Sunnylands, California, one phrase has come to define both the vast potential for bilateral cooperation and the failure to realize that potential: the Chinese proposal for a “new model of major country relations” (新型大国关系). While China has presented the concept in terms of “win-win” cooperation, U.S. skepticism has broadly centered on two critiques. First, U.S. policy makers are concerned that associated language regarding “respect for core interests” represents an attempt to procure concessions regarding longstanding differences of opinion on Taiwan, Tibet, and similarly fraught topics. Secondly, the U.S. has made clear its position that bilateral ties “should be based not on slogans but on the quality of the cooperation”: pragmatic, concrete results should come before rhetoric.
This article compares three different ways of understanding this “concrete” dimension of political engagement: 1) Policy “realism,” as manifested in dominant strains of policy analysis in both the U.S. and China that, while distinct, share many important common premises; 2) the “empiricist” positions of those who argue the need to take into account various underlying trends which counterbalance realist considerations; and 3) the more thickly “pragmatic” model proposed here, in which rhetorical factors rejected in the above models are themselves regarded as empirically significant in the conscious development of “public, objective and shared consequences.” Embracing China’s “new model” language may, itself, thus enable otherwise unlikely pragmatic achievements.
Xi Jinping quotes the ancient philosopher Han Fei, and offers possible insights into his politica... more Xi Jinping quotes the ancient philosopher Han Fei, and offers possible insights into his political beliefs.
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Papers by Ryan Mitchell
Indeed, the Chinese side has argued against tribunal jurisdiction precisely on the basis of the primacy of questions over territorial sovereignty—which are barred from UNCLOS proceedings—to the determination of all other legal issues being contested between the parties. This Article assesses the merits of these and other major objections to the UNCLOS arbitration and proposes a supplemental legal mechanism: an international Commission of Inquiry (COI) by involved states, addressing French, Japanese, and other extra-regional states' now inactive claims regarding the sovereign status of the region's various island territories through the end of World War II hostilities in 1945. Such a COI would acknowledge, as the UNCLOS arbitration does not, the centrality of the legal issue of territorial sovereignty to the dispute. Yet by limiting its findings to the islands' contested status during the period of European and Japanese colonialism in Asia, rather than determining current ownership, a COI could nonetheless avoid exacerbating tensions or alienating claimants.
Most importantly, such an approach could serve to establish a narrowed, but still ample, range of possible legal claims and outcomes for further adjudication. Claims based on " discovery " and " conquest " could at least potentially be ruled out, leaving only " cession "-based arguments (the implications of which are considerably less divisive, as they are premised on mutual recognition between equal states). A COI would also be based upon and contribute to a regional " epistemic community " of juridical expertise, furthering transnational civil society ties between claimant states. Finally, the positivistic discourse based on the principle of legal equality pursued by a COI as here proposed could, potentially, more generally dissuade unilateral behavior by individual states, while promoting mutual recognition and cooperative arrangements among regional actors.
This article compares three different ways of understanding this “concrete” dimension of political engagement: 1) Policy “realism,” as manifested in dominant strains of policy analysis in both the U.S. and China that, while distinct, share many important common premises; 2) the “empiricist” positions of those who argue the need to take into account various underlying trends which counterbalance realist considerations; and 3) the more thickly “pragmatic” model proposed here, in which rhetorical factors rejected in the above models are themselves regarded as empirically significant in the conscious development of “public, objective and shared consequences.” Embracing China’s “new model” language may, itself, thus enable otherwise unlikely pragmatic achievements.
Other Publications by Ryan Mitchell
Indeed, the Chinese side has argued against tribunal jurisdiction precisely on the basis of the primacy of questions over territorial sovereignty—which are barred from UNCLOS proceedings—to the determination of all other legal issues being contested between the parties. This Article assesses the merits of these and other major objections to the UNCLOS arbitration and proposes a supplemental legal mechanism: an international Commission of Inquiry (COI) by involved states, addressing French, Japanese, and other extra-regional states' now inactive claims regarding the sovereign status of the region's various island territories through the end of World War II hostilities in 1945. Such a COI would acknowledge, as the UNCLOS arbitration does not, the centrality of the legal issue of territorial sovereignty to the dispute. Yet by limiting its findings to the islands' contested status during the period of European and Japanese colonialism in Asia, rather than determining current ownership, a COI could nonetheless avoid exacerbating tensions or alienating claimants.
Most importantly, such an approach could serve to establish a narrowed, but still ample, range of possible legal claims and outcomes for further adjudication. Claims based on " discovery " and " conquest " could at least potentially be ruled out, leaving only " cession "-based arguments (the implications of which are considerably less divisive, as they are premised on mutual recognition between equal states). A COI would also be based upon and contribute to a regional " epistemic community " of juridical expertise, furthering transnational civil society ties between claimant states. Finally, the positivistic discourse based on the principle of legal equality pursued by a COI as here proposed could, potentially, more generally dissuade unilateral behavior by individual states, while promoting mutual recognition and cooperative arrangements among regional actors.
This article compares three different ways of understanding this “concrete” dimension of political engagement: 1) Policy “realism,” as manifested in dominant strains of policy analysis in both the U.S. and China that, while distinct, share many important common premises; 2) the “empiricist” positions of those who argue the need to take into account various underlying trends which counterbalance realist considerations; and 3) the more thickly “pragmatic” model proposed here, in which rhetorical factors rejected in the above models are themselves regarded as empirically significant in the conscious development of “public, objective and shared consequences.” Embracing China’s “new model” language may, itself, thus enable otherwise unlikely pragmatic achievements.