Voice

South China Sea dispute headed to court?

The foreign affairs minister of the Philippines made a potentially significant announcement today:

This afternoon, the Philippines has taken the step of bringing China before an Arbitral Tribunal under Article 287 and Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in order to achieve a peaceful and durable solution to the dispute over the West Philippine Sea (WPS).

At around one o’clock this afternoon, the Chinese Ambassador to the Philippines H.E. Ma Keqing was summoned to the Department of Foreign Affairs and was handed a Note Verbale by Assistant Secretary Teresa Lazaro. The Note Verbale contains the Notification and Statement of Claim that challenges before the Arbitral Tribunal the validity of China’s nine-dash line claim to almost the entire South China Sea (SCS) including the WPS and to desist from unlawful activities that violate the sovereign rights and jurisdiction of the Philippines under the 1982 UNCLOS.

The Chinese government responded by insisting that the dispute must be resolved by negotiation, not international adjudication:

Chinese Ambassador to the Philippines Ma Keqing reiterated Tuesday China's principled position that China has indisputable sovereignty over the islands in the South China Sea and its adjacent waters, after the Philippines announced it had taken the disputes to the United Nations Arbitral Tribunal.

"The Chinese side strongly holds the disputes on South China Sea (SCS) should be settled by parties concerned through negotiations," Ma said in a meeting with Assistant Secretary of the Philippine Department of Foreign Affairs (DFA) Theresa Lasaro. The latter submitted the Note Verbale that the Philippines will initiate arbitral proceedings of the South China Sea issue, according to the Chinese Embassy in Manila.

Manila's move toward litigation comes just as Japan has made a conciliatory move in the maritime dispute.

The Multilateralist

NATO's detainee dilemma in Afghanistan

NATO forces in Afghanistan have for years faced a dilemma: what to do with Taliban and other fighters they capture? For a variety of reasons, including U.S. detainee scandals, most NATO countries have been reluctant to hold prisoners for any extended period of time. (For background on alliance dynamics, see this piece by Ashley Deeks.) In the face of these pressures, alliance members have struggled to develop a common policy.

The solution appears to be obvious: hand captured fighters to the Afghan security forces who are the receiving billions in Western aid. But tranferring detainees  to the Afghan authorities has its own complications. Several accounts, including by the United Nations, have documented abuses in Afghan jails and detention centers. Given that reality, most NATO countries settled on a policy of allowing transfers while supporting reform in Afghanistan's detention practices and attempting to monitor the conditions detainees face. It appears that even that compromise is now coming apart. As the Guardian reports:

The Nato-led International Security Assistance Force (Isaf) confirmed a ban on transfers to some jails, but did not confirm if it was a reaction to the UN report.

"Based on concerns over detainee treatment at certain Afghan detention facilities, Isaf suspended the transfer of detainees to these facilities," spokesman James Graybeal said in a written response to questions. He declined to say which prisons or areas of the country had problematic treatment of prisoners, so it was not clear if they were the same jails identified in the 2011 report.

Then, nearly half of prisoners interviewed by Afghanistan's intelligence agency said they had been tortured, while a third of those arrested by Afghan police reported abuse, although the report said the ill-treatment was not "institutional or government policy".

The New York Times notes that the policy change is a significant blow to NATO efforts on detention policy:

The moves were a setback on detention issues that have created tension between the countries, and on years of international efforts to promote humane treatment of prisoners. And under American law, the torture allegations could also set off significant financial aid cutoffs to parts of the Afghan security forces, which play a crucial role in plans for an American withdrawal that are based on handing over responsibility for security to the Afghans as early as this spring. 

(While NATO may be temporarily stopping the flow of detainees, there were indications today that the Afghan government could soon face an influx from a different source; Pakistan's government announced its intention to release all Afghan Taliban in its custody.)

As with so many aspects of the Afghanistan institution-building effort, there's an unreal quality to the detainee debate. A few months from now, NATO will wash its hands of these dilemmas, and prisoners will be left to the tender mercies of the Afghan government. As long as the government survives, that is.