The Freeman Spogli Institute for International Studies (FSI) is pleased to announce that Amichai Magen has been selected as the inaugural Visiting Fellow in Israel Studies. Dr. Magen is currently the head of the MA program in Diplomacy and Conflict Studies, and director of the Program on Democratic Resilience & Development at the Lauder School of Government, Diplomacy, and Strategy at Reichman University, in Herzliya, Israel.

As a Visiting Fellow in Israel Studies, Dr. Magen will teach courses on Israeli politics, society, and policy, and also on his recent research regarding liberal orders, governance in areas of limited statehood, and political violence. In addition, he will help guide FSI programming related to Israel, advise and engage Stanford students and faculty.

An alumnus of Stanford Law School, where he obtained his JSD in 2008, he has also been a pre-doctoral scholar at the Center on Democracy, Development, and the Rule of Law (CDDRL) and a National Fellow at the Hoover Institution.

“I’ve had the pleasure of publishing a book with Amichai before, and can attest that he’s a first-rate scholar and academic,” said FSI Director Michael McFaul. “I recall a conversation between us when Amichai was a pre-doctoral fellow at CDDRL, and I told him that once you arrive at Stanford you spend the rest of your life trying to make it back here. I’m delighted that time will come soon.”

The son of refugees from Nazi Germany and Soviet-occupied Latvia, Dr. Magen's scholarship addresses the constitutive elements, vulnerabilities, and evolution of modern liberal political and legal orders – notably statehood, democracy, the rule of law, and regionalism – as well as Israel's place in such orders.

Dr. Magen’s current research examines limited statehood, governance failures, and political violence in the international system, and his book on the subject is forthcoming from Stanford University Press. During his time at Stanford, Dr. Magen will be based at FSI’s Center on Democracy, Development, and the Rule of Law.

“I am thrilled that CDDRL will have the opportunity to host and welcome back Dr. Amichai Magen,” said Kathryn Stoner, the Mosbacher Director of Center on Democracy, Development, and the Rule of Law. “He was an outstanding contributor to the Center in its earliest days, and I know that he will be an outstanding inaugural Israel Fellow. I look forward to working with him again.”

In addition to his academic duties, Dr. Magen has also served on the executive committee of the World Jewish Congress, and is a board member of the International Coalition for Democratic Renewal, the Israel Council on Foreign Relations, and the Israeli Association for the Study of European Integration. He regularly briefs diplomats, journalists, and academics from around the world on Israeli political, constitutional, and geopolitical affairs.

“I am delighted to return to Stanford and engage with the many talented faculty and students on this unique campus,” said Dr. Magen. “FSI was my intellectual home as a graduate student at Stanford, and a model academic community that has shaped my subsequent career as a researcher and teacher. This is a real homecoming moment for me, and I am deeply grateful to be granted the opportunity to be a part of this wonderful community once again.”

The Visiting Fellow in Israel Studies program was launched in September 2021 with the generous support of Stanford alumni and donors. The search committee was led by Larry Diamond, the Mosbacher Senior Fellow in Global Democracy at FSI, and included other senior fellows from throughout the institute.

“In developing and anchoring the program over the next three years, Amichai Magen will bring a brilliant scholarly mind, a great love of teaching, and broad expertise on Israeli politics, society, public policy, and regional relations,” said Diamond. “In addition, he will contribute greatly to the research work of CDDRL with his expertise on governance crises, limited statehood, and challenges to the liberal international order.”

In addition to Dr. Magen, the Visiting Fellow in Israel Studies program plans to bring a second Israeli visiting fellow to teach and conduct research during the next academic year. Media inquiries about the program can be directed to Ari Chasnoff, FSI’s associate director for communications.

[Subscribe to APARC’s newsletters for updates on our scholars’ research.]

Exploring Means of Enforcing Accountability

Speaking as an independently acting investigator, Special Rapporteur Tomás Ojea Quintana echoed the findings of his predecessors in warning that the activity within North Korea has escalated from human rights violations to international crimes against humanity, including extermination, enslavement, torture, sexual violence, and knowingly inflicting prolonged starvation.

What governing body has the ability to hold national leadership at the highest level accountable for such crimes? Quintana outlines several options. One is the International Criminal Court, the international tribunal seated in The Hauge. However, superpower nations such as the United States, China, and Russia are historically recalcitrant to the jurisdiction of this legal body and could feasibly veto a case against the DPRK sent to the ICC.

Another option is for the UN Security Council to create a hybrid tribunal through which international prosecution could litigate. This option is more ad hoc, but would circumvent some of the potential veto pitfalls to using the ICC.

The Secretary General of the United Nations could also use the pejoratives given under Article 99 of the United Nations Charter to force action and accountability forward. This would be a difficult and even unprecedented means of jurisdiction, but it is supported by an already existing, if rarely enacted, legal framework.

Moving Forward

Each of the avenues proposed by Special Rapporteur Quintana has varying levels of efficacy and shortcomings, particularly in the immediate context of the ongoing COVID-19 pandemic and the further hindrance it has created to gathering evidence and intelligence directly from North Korea. As Roberta Cohen notes,

“No possibility exists right now for International Criminal Court referral, or establishing an ad hoc tribunal, but progress is nonetheless being made in laying the groundwork for eventual criminal prosecution and other aspects of transitional justice.”

Former Ambassador Joon Oh echoes the importance of keeping the issue of human rights and international crimes in North Korea in the spotlight even if immediate legal options stall.

“The issue of accountability is extremely important. These alternative ways [of creating accountability] should be explored. Exploring these avenues adds pressure on North Korea. Even remote possibilities add pressure, which might help change their behavior.”

On April 26, 2021, Ambassador Robert King, former U.S. Special Envoy for North Korean human rights issues will continue the dialogue on accountability in North Korea with a discussion of his forthcoming book, Patterns of Impunity: Human Rights in North Korea and the Role of the U.S. Special Envoy, and the role the South Korean and U.S. governments play in promoting human rights in North Korea. Registration for the book launch is open through the day of the event.  

This article by Oriana Skylar Mastro was originally published by the Lowy Institute.

Chinese exercises in the South China Sea last month, and the strong US response, show these disputed waters will not soon be calm. While the focus has largely been on military maneuvers, competition in legal positions has also been heating up. Last year, both the United States and Australia risked China’s wrath by officially stating that China’s claims in the South China Sea are unlawful. Other claimants were pleased by this change of policy, but none voiced it prominently.

The issue, however, is not that China flagrantly violates international law – it is that it does so while simultaneously creating a veneer of legal legitimacy for its position.

The conventional wisdom is that China claims sovereignty over “virtually all South China Sea islands and their adjacent waters.” Its claims are “sweeping” and more expansive than those of any other rival claimant. In 2009, Dai Bingguo, then a top Chinese official, first referred to the South China Sea as a “core interest”, a term often used for Taiwan, Xinjiang, and Tibet. While China has not been specific about the extent of its claims, it uses a “nine-dash line” which “swoops down past Vietnam and the Philippines, and towards Indonesia, encompassing virtually all of the South China Sea”, to delineate its claims.

[Subscribe to APARC's newsletters to stay current on our scholars' research.]

On the surface, it appears that Chinese leaders are relying on a historical argument to buttress their claims – China traces its interaction with the South China Sea back to the Western Han Dynasty. Thus, Beijing’s narrative about its claims begins as early as the 2nd century BCE, when Chinese people sailed in the South China Sea and discovered some of the region’s land features.

Scholars have meticulously cataloged the dubious nature of this history. And besides, the UN Convention for the Law of the Sea (UNCLOS) does not grant signatories the right make claims based on historical legacy, and the concept of “historic claims” lacks a clear basis in international law.

But this is not actually how China lays claim to 90% of the South China Sea. China’s abuse and misapplication of international law is a bit more complex. There are four levels that build on one another.

First, China claims it has the same rights as archipelagic states, those countries mainly made up of islands. One of the benefits of archipelagic status is that the waters between islands are considered internal waters, like rivers inside a country. Other countries have no right to transit these waters without permission. This archipelagic status is conferred through the UN, and only 22 nations claim it.

Spoiler alert: China is not one of them.

China is undeniably a continental country, but nevertheless, it drew straight baselines around the Paracel Islands and claimed the waters between the islands to be internal waters. Beijing has not done this explicitly for the Spratly islands area, but its reaction to the activities of other countries suggests that is its interpretation. My discussions with Chinese strategists reveal that China will likely explicitly draw baselines to claim internal waters between the Spratly Islands once it has the military capabilities in place to enforce it. (This is not an easy task, as the Spratlys’ sea zone is 12 times that of the Paracels, covering 160,000 to 180,000 square kilometers of water.)

China then claims a 12 nautical mile (nm) territorial sea from the Paracel baseline, not from the individual islands, and in the Spratlys from many features that under international law are not awarded this right, such as artificial islands. Moreover, China’s interpretation of the territorial sea is that the state has the exclusive right to make, apply and execute its own laws in that space without foreign interference. But according to UNCLOS, all ships, civilian or military, enjoy the right of innocent passage through other states’ territorial seas. Moreover, the contiguous zone is considered part of international waters, and states do not have the right to limit navigation or exercise any control for security purposes.

Lastly, China claims 200 nm from the end of the territorial sea as its exclusive economic zone (EEZ), where it claims to have the right to regulate military activity. The US insists that freedom of navigation of military vessels is a universally established and accepted practice enshrined in international law – in other words, states do not have the right to limit navigation or exercise any control for security purposes in EEZs. Australia shares this view, but not all countries accept this interpretation. Argentina, Brazil, India, Indonesia, Iran, Malaysia, the Maldives, Oman, and Vietnam agree with China that warships have no automatic right of innocent passage in their territorial seas. Twenty other developing countries (including Brazil, India, Malaysia, and Vietnam) insist that military activities such as close-in surveillance and reconnaissance by a country in another country’s EEZ infringe on coastal states’ security interests and therefore are not protected under freedom of navigation.

In other words, while international law may support the position of the US and Australia on legal behavior within the EEZs, countries need to work harder to solidify this norm more broadly.

Through these three positions alone on internal waters, territorial seas and EEZs, China lays claim to approximately 80% of the South China Sea. Then China uses the nine-dash line to cover the remaining territory and provide redundancy by claiming “historic waters” – i.e., that China has historically controlled this maritime environment – again, a view that has no basis in international law.

Image

The US has taken steps to challenge the false legal basis of China’s claims. This is the main purpose behind freedom-of-navigation operations, or FONOPS – to demonstrate through action that the US does not accept China’s position that areas are not international waters but internal or territorial waters. In other instances, the US is signaling that it does not accept an area to be in China’s EEZ, although China would not have the right to regulate military activity there anyway.

But undermining China’s false legal claims will take more than military operations and harsh statements. In 2016, the Hague Tribunal ruled that China’s claims of historic rights in the South China Sea lacked legal foundation, China’s actions in the region infringed on the rights of the Philippines, and features in the Spratlys are not entitled to EEZs or territorial zones. Yet Washington’s ongoing refusal itself to ratify UNCLOS undermines the general effectiveness of pushing back against Beijing with legal tools of statecraft. Additionally, Washington squandered an opportunity to support the Philippines in enforcing the international legal tribunal’s 2016 ruling in its favor, further reducing the attractiveness for other claimants to challenge Beijing on legal grounds.

The US should not make the same mistake twice. It should support other claimants that may want to pursue legal action against China (Vietnam is currently considering this course of action). Then, when the tribunal rules once more against China, the US should lead the charge to enforce the ruling.

China is using all the tools of statecraft at its disposal to gain control over this vital strategic waterway. The US and its allies should do the same.