A Tangled Mess

The Law School’s new Center for Constitutional Governance is off to a fast start. Its recent event on the territorial clashes between various Asian nations in the South China Sea examined the bold power plays taking place in the region and showed why the U.S. has every reason to be concerned.

By Carrie Johnson

Winter 2012

This past spring, in turquoise waters 140 miles west of the Philippines, tensions over control of an unusually important triangle-shaped collection of rocks and reef bubbled to the surface. A massive, steel-hulled Philippine Navy ship was engaging in a routine patrol of the area when it spotted a group of Chinese fishing boats allegedly trawling for giant clams, baby sharks, and turtles.

The fertile fishing ground, known as the Scarborough Shoal, is a favorite of poachers, and, as would become unmistakably clear, it is the subject of a long-standing territorial dispute between China and its neighbors.

As the Philippine ship prepared to tow the fishing boats to shore and arrest those onboard, a pair of Chinese surveillance vessels appeared from the distance to block any naval action. A stare down of sorts ensued. Neither country blinked. And, day by day, more ships from each nation joined the fray. 

After more than five weeks, the United States reportedly helped broker an agreement that resulted in the ships from both countries leaving the area. But fast forward nine months, and remnants of the standoff persist. According to various reports, the Chinese roped off the entrance to the shoal’s lagoon and have stationed three ships there to prevent Philippine boats from entering. China also restricted Philippine imports such as bananas and pineapples; lawmakers in the Philippines responded by renaming the contested territory the West Philippine Sea and placing fish aggregating devices in the area to, in essence, fence off some of the region’s best fishing spots. All the while, rhetoric between the two nations remains at a fevered pitch. 

Even before this most recent dustup, the U.S. government has paid close attention to the sovereignty clashes taking place in the waters surrounding China. Professor Sarah H. Cleveland, who recently returned to the Law School after serving for two years as counselor on international law with the State Department, notes that these conflicts over small oceanic landmasses can have gigantic economic and political ramifications, and she has engaged her colleagues at the Law School on the issue. 

At its most basic level, says Professor Matthew C. Waxman, “this is a territorial dispute among multiple parties with conflicting claims.” But Waxman, a national security expert, pointed out there is plenty more going on. “It is also, though, about a rising China and how it will project its rising power in the region,” he adds. “The stakes are huge, not only for the parties in the region but for broader geopolitics and for the global economy, especially since so much trade passes through those waters.”

Beyond the Scarborough Shoal, additional boundary conflicts in the South China Sea involving important shipping routes and vast natural resources have drawn in a panoply of other governments—namely Vietnam, Indonesia, Malaysia, Brunei, and Taiwan. (China and Japan, meanwhile, are engaged in saber rattling over islands near large natural gas and oil deposits in the East China Sea.) The conflicting claims involve a mix of international law—such as the U.N. Convention on the Law of the Sea, which delineates the scope of participating nations’ water and natural resources rights beyond their shores—and the various boundaries and maritime laws created by the respective nations. 

This past fall, the unfolding disputes took center stage at an event hosted by Columbia Law School’s new Center for Constitutional Governance, a multifaceted program that allows scholars to explore the meaning of democracy and sovereignty in the U.S. and around the world. The center co-sponsored a high-level roundtable discussion that examined the competing claims of sovereignty in the South China Sea region and the various legal issues at play. It featured representatives from the governments of the Philippines, China, and Vietnam; international boundary expert Coalter G. Lathrop; U.S. State Department Legal Adviser Harold Hongju Koh; and Sir Daniel Bethlehem, the former legal adviser to the U.K. Foreign and Commonwealth Office who was a visiting professor at Columbia Law School this past fall. Bernard H. Oxman ’65, the nation’s leading expert on the law of the sea, who teaches at the University of Miami School of Law, returned to campus for the event, as well.

Cleveland organized the conference, which was scheduled to coincide with International Law Week at the United Nations and drew a crowd of more than 150 people, including representatives from approximately 30 foreign governments. Participants examined several overlapping issues that combine to form the crux of the conflicts—including the legal ramifications stemming from how various oceanic landmasses are defined, the stated justifications underlying competing claims of sovereignty, and potential methods for determining the primacy of those claims.

“The South China Sea program helped facilitate the exchange of knowledge between academia and governments on this very pressing but little understood issue,” Cleveland says, “while also providing a protected forum in which governments could air the legal and factual issues at stake. We wanted to help move the conversation beyond the sticking points.”

And, make no mistake about it, those sticking points are teeming with geopolitical ramifications. The 1.4 million square miles of the South China Sea play host to nearly half of the world’s commercial shipping freight every year. In the shallow waters near the contested Scarborough Shoal, more than 3,000 different species of fish flourish. The area is also the source of much of the world’s horseshoe crabs, which clamber around underground hills and plateaus. Deep below the ocean bottom, meanwhile, untapped oil and natural gas reserves beckon. Sovereign control of the uninhabited islands and outcroppings in the area could result in vast economic and strategic benefits for the prevailing country, so the Philippines are far from the only nation concerned about China’s continued flexing of its muscles in the region.

At the same time, diplomats are working to defuse tensions before they ignite further. Secretary of State Hillary Rodham Clinton, for one, encouraged officials in China to sign off on a code of conduct with its neighbors during her visit there this past fall. (The last time strains ran so high, in 1988, 70 Vietnamese sailors died in a firefight with Chinese forces as each side rushed to plant its flag on a rocky island chain known as the Spratlys.) And international law scholars are searching for ways to use their expertise to help avoid any more bloodshed, in part by bringing the governments together to discuss non-military options for resolving existing conflicts.

“Much of the debate has not been in a legal framework,” Koh noted at the conference. “What you have heard today is the beginning of a conversation. . . . Even if we cannot resolve all disputes, we can enter into various codes of conduct. It helps to have this conversation within the zone of law.”

Cleveland, an expert in international law, notes that she confronted some of the most challenging issues at play in the South China Sea dispute during her time with the State Department. “In that role, I thought a lot about the scope of territorial sovereignty, non-intervention, and the propriety of threats and use of force,” she says. “And then there is China’s increasingly muscular posture on the international stage.”

Even as panelists at the Law School conference talked through possible ideas for bringing an end to the face off, China continued to assert its dominance in the waters that bring in more than 3 million tons of fish each year—a quarter of that country’s annual haul. According to Cleveland, the issue is one that will not succumb to an easy solution, and there is no better place for examining various dimensions of the problem than Columbia Law School.

“It has been exhilarating to be able to come back to the Law School and bring together academics and government officials to try to work through some of these pressing issues as events unfold,” she says.

When the Center for Constitutional Governance began operations in July, its leaders envisioned  events and discussions that would feature exactly the type of dynamic lineup present at the South China Sea conference. And the center’s co-directors, Professors Gillian E. Metzger ’95 and Trevor W. Morrison ’98, plan to implement a broad array of programs and events in the coming years.

“One thing that a center like this can do is provide an institutional means for scholars on the faculty to take advantage of overlapping interests,” says Morrison, the Liviu Librescu Professor of Law. “It will help us to reach out and interact with the world at large, while also providing an institutional way to deepen connections within the faculty.”

The center will cast a wide net, hosting discussions for Columbia Law School faculty, bringing in outside scholars, and sponsoring events open to Law School students. Its blueprint spans the globe—from examining the growing influence of the executive branch and the American president, to considering the structure of developing constitutions and examining voting rights initiatives in emerging democracies.

Morrison notes that issues related to constitutional and governmental structure—the separation of powers and the push and pull among Congress, the president, and the courts—have interested him for years. He has written, for instance, about the power of the executive branch to detain alleged enemy combatants, the role of the courts in reviewing such detentions, and the interaction between the legislative and executive branches on questions of presidential power.

The Law School faculty, Morrison says, includes a community of scholars intent on exploring the implications of those issues as they apply to the U.S. and the rest of the world. “Questions of government structure are not just of interest to bureaucrats,” he says. “They go to the heart of the relationship between government and its people.”

Co-Director Gillian Metzger, who also serves as a vice dean at the Law School, says the idea to create the Center for Constitutional Governance emerged after a series of conversations with Professor Henry Paul Monaghan, a widely published constitutional law scholar who has engaged in a great deal of recent research on foreign judicial review. Metzger calls him “the driving force” behind the idea of bringing faculty members together to discuss governance issues that have international parallels. She and Morrison are running with the idea.

“My goals for the center are both internal and external,” Metzger says. “On the internal side, I hope it will be a mechanism for pooling and expanding the strengths of Columbia Law School’s public law faculty, with benefits for the faculty and students generally. On the external, my goal is to have the center serve as a forum where lawyers and officials at all levels of government can interact with legal academics on issues of shared concern.”

Not surprisingly, several of the professors most closely affiliated with the center say their views on questions of governmental structure and federalism derive in part from the perspectives they developed while working in the executive branch. Morrison served as an associate counsel to President Barack Obama and came away with the impression that much more scholarship is needed on the little-understood, but powerful, behind-the-scenes roles of the White House Counsel’s Office and the Justice Department’s Office of Legal Counsel, the latter of which operates as what Morrison calls the most important centralized source of legal advice within the executive branch.

Sarah Cleveland advised the executive branch on international law and human rights issues as a legal counselor in the Obama State Department. And Matthew Waxman honed his experience in national security law during a tenure that brought him from the National Security Council to the Pentagon and the State Department during the George W. Bush administration.

“I see Gillian and Trevor several times each day, and we’re constantly talking,” Waxman says. “In the coming years, there’s going to be so much overlap between national security and various structural issues­—for instance, how to allocate power among different government institutions.”

Even though the Center for Constitutional Governance is just a few months old, it has already sponsored two other events in addition to the South China Sea conference.

Trevor Morrison, Gillian Metzger, and Professor Nathaniel Persily, along with nearly a dozen other scholars, gathered for a conference this past fall to discuss the implications of the U.S. Supreme Court’s ruling on the Affordable Care Act (ACA), the signature domestic legislation of the Obama presidency. The event brought to campus health care policy experts, supporters of the health care law, and Georgetown Law Center Professor Randy Barnett, the intellectual architect of several of the arguments made in court for striking down the ACA.

Papers presented at the conference—including one by Persily and MIT political science professor Andrea Campbell on how the decision has impacted public opinion on the health care law—will be published as a book by Oxford University Press.

The second marquee event hosted by the center was a daylong workshop that featured Duke University Law Professor Curtis Bradley and Morrison examining the ways that government officials are constrained by law. Or, as Morrison describes it: “What’s the relationship between law and politics? How should we be appraising what the government does? We’re looking at the government structure—the roles of the three branches—and applying these old ideas to modern problems.”

He pointed to several real-world scenarios where the issue comes into play, including when the president wants to use military force in places such as Libya, and in the power allocation between the executive branch and Congress over the debt-ceiling crisis of 2011.

For Sara Mark, the center’s new executive director, working to ensure the success of events such as the one featuring Bradley and Morrison has amounted to a whirlwind of activity. Mark, who has a background in nonprofit management, says that her first priority in getting the center off the ground has been to assemble what she refers to as “institutional building blocks.” That means putting together a board of advisers, building a website for the center, organizing larger-scale conferences and workshops, and placing scholarship in law journals. “The new center is devoted to exploring the legal boundaries of government power in essential policy areas, including health care, national security, the economy, and education,” Mark says. “And right now, the contours of federal, state, and private sector authority, and the role of government itself, are at the forefront of debate. There is so much to examine.”

Metzger and Morrison agree, and the co-directors say they are committed to experimenting with ideas and formats for future programs. “Eventually the center could host visiting scholars, or hold panel discussions for students with the faculty,” Metzger notes.

In the meantime, those involved with the Center for Constitutional Governance will continue to consider the structural developments at play in current events such as those unfolding in the South China Sea and the developments that have taken place in the aftermath of the Arab Spring.

“So often when it comes to transitions, there’s so much emphasis on individual rights such as free speech,” Matthew Waxman says. “But at least as important are some of the big structural issues: How to allocate power among government branches? What kind of judicial review will there be? How do you share power with religious institutions, and with the military?”

In other words, Waxman says, “It’s an extremely exciting time to be thinking about constitutional structure.”

Carrie Johnson covers the U.S. Justice Department for National Public Radio.