Weeks ahead of an expected decision by the Hague-based Permanent Court of Arbitration on a legal challenge by the Philippines against China’s claims to the South China Sea, a Hong Kong-based institute has produced a 41-page legal document making the case that the dispute lies outside the court’s jurisdiction.
The amicus curiae (friend of the court) brief was submitted on June 6 by the Hong Kong-based Asia Pacific Institute of International Law (APIIL).
According to state-run Xinhua news agency, the brief was endorsed by “several solicitors and legal experts from China’s Hong Kong, Britain and Australia.” In its report on the matter, China Daily writes that Tony Carty, a British professor of international law at Tsinghua University, and Natalie Klein, professor and dean of Macquarie Law School in Sydney, have signed the brief to the Court.
Hong Kong barrister Daniel R. Fung (aka Daniel Fung Wah-kin, 馮華健), chairman of APIIL, argues that the South China Sea dispute should be handled through diplomatic and political negotiations rather than arbitration, adding that they should not be handled under the United Nations Convention on the Law of the Sea (UNCLOS). Indicatively, even though amicus curiae is a third party to a case, Fung’s argument mirrors the position that Beijing has adopted in the dispute and one of the reasons why the Chinese government has refused to recognize the validity of the Court.
Fung claims his effort is solely “to maintain the perfection of the international law system and the perfection of the arbitration tribunal.”
In a statement on June 8, the Chinese Ministry of Foreign Affairs stated that on matters of territorial sovereignty and maritime delimitation, Beijing will never accept third party settlement “or any means of dispute settlement that are imposed on it.”
The Permanent Court of Arbitration has yet to respond to the brief.
Besides the brief’s dovetailing with Beijing’s position on international arbitration, another intriguing element to this affair is the nature of APIIL. If you have never heard of it, that’s because it’s a brand new outfit. According to the HKG Business web site, the Asia Pacific Institute of International Law Limited was incorporated on April 19, 2016, under the name Asia Institute of International Law Limited. Information from the Hong Kong Companies Registry shows it changed its name to the current iteration on June 6.
Fung, the chairman of APIIL, has had an illustrious career as a counsel, as his biography on the Des Voeux Chambers web site demonstrates. Among many other things, he is a former solicitor general for Hong Kong SAR and is National Delegate to the Chinese People’s Political Consultative Conference since 2003. According to Christine Loh, author of Underground Front: The Chinese Communist Party in Hong Kong, “Appointments to the CPPCC have been used as a way to cultivate people the CCP wanted to bring on-side. The CPPCC is self-described as a “an organization of the united front of the Chinese people.”
Fung is also a funding governor of the China-United States Exchange Foundation (CUSEF), a non-government organization created in 2008 with the intent to create “a critical bridge for the two countries by facilitating open and constructive exchange among policy-makers, business leaders, academics, think-tanks, cultural figures, and educators from the United States and China.”
However, Aaron Friedberg, a professor at Princeton University, told a conference last year that there is more to the CUSEF than meets the eye. He says it is hardly the “privately funded, non-government, non-profit entity” it claims it is, adding that it is, as The Diplomat reports, “funded by Hong Kong tycoons and state-owned enterprises and is supported and advised by government-linked entities including the Shanghai Institute for International Studies and the PLA Academy of Military Science.”
In a 2005 hearing, a legal counsel representing a group of Falun Gong practitioners requested that Hong Kong authorities release their watch list of Falun Gong members and explain the rationale for compiling it. The case stemmed from an incident in February 2003 when four Taiwanese Falun Gong practitioners were denied entry into Hong Kong to attend a Falun Dafa conference and were deported.
Government counsel Fung opposed the request, stating “public interest immunity” to turn refuse the release.
In 2010, Fung was found guilty of professional misconduct and ordered to pay a penalty of HK$300,000.