Lectures by Prof Alexander Proelß in Shanghai and Beijing
Event: Regional and International Affairs
During a visit in May 2017, Prof Alexander Proelß (University Trier) gave a series of lectures and participated in round-table discussions at several academic institutions in Shanghai and Beijing on the topics of international maritime law as a dispute settlement mechanism and the modalities and consequences of Brexit.
He started his visit in Shanghai where he visited the Shanghai Institutes for International Studies (SIIS, May 2nd) and the Shanghai Academy for Social Sciences (SASS, 3rd May).
Prof Proelß started his talk about the international law of the sea by pointing out that interest had increased in recent years, especially in the light of the dispute over the South China Sea. He gave an overview of the United Nations Convention on the Law of the Sea (UNCLOS), a very comprehensive regime with a quasi-constitutional character as it covered “all issues relating to the law of the sea”. According to Proelß however, the determination of the sovereignty status of territories generating maritime zones is a necessary first step prior to the application of UNCLOS which does not address the issue of sovereignty. This is the main reason why China claims that the UNCLOS tribunal lacked jurisdiction over the South China Sea (SCS) issue. Another contentious point of the SCS proceedings was the “island and rock issue”. Prof Proelß criticized that the tribunal went beyond merely deciding the concrete case on the basis of UNCLOS but instead created new law by defining the term “rock” in a new way. Proelß pointed out that this kind of judicial activism by international courts was highly problematic due to the resulting legal uncertainty.
During the discussions, the Chinese participants were very interested in Prof Proelß’ view on how to prove China’s sovereignty over islands in the South China Sea using the international law concept of ‘historic rights’. Prof Proelß explained that while the UNCLOS was silent on these rights, the tribunal held that China had not claimed those rights. In retrospective, Proelß argued, China’s approach of not participating in the proceedings does not appear to have been the best choice. If China had participated it could have put forward a coherent set of claims and explained itself better.
In his second presentation Prof Proelß gave some insights into the legal modalities and possible consequences of Brexit. He went into details about Article 50 of the Treaty of the European Union and the provisions it makes about leaving the EU. Importantly, Proelß held that the constitutional requirements of the member country must be followed which is why the UK parliament had to give its consent to start the negotiation process. He also explained, while there was no duty to conclude an agreement, negotiations will nevertheless be terminated after two years irrespective of the outcome. Due to the great amount of legislation originating in the EU, it is likely that the UK will experience a legal vacuum after leaving the former and consequently it may be necessary to continue the application of EU law even after the Brexit. Prof Proelß also clearly stated that it will not be possible for the UK to remain a part of the Single European Market without also accepting the free movement of persons, as has been proposed by politicians in the UK.
During the discussion the unique constitutional status of the European Union was highlighted by Proelß as he mentioned that the EU can neither be seen as a confederation nor as the ‘United States of Europe’ especially due to the supremacy of EU law over national legislation. Chinese participants also enquired about the future of China-EU relations in the light of the Brexit. According to Prof Proelß, these are not likely to see major changes but developments especially in the financial sector might have an impact as it could force the financial sector to relocate to continental Europe. On the other hand, Brexit also offered new opportunities for Sino-British relations for instance through new free trade agreements.
During his visit in Beijing from May 4th to May 5th, Prof Proelß participated in an expert discussion at the Chinese Academy of Social Sciences (CASS) and gave two lectures at the China Institutes of Contemporary International Relations (CICIR).
During the expert discussion with scholars from the Research Institute for Constitutional and Administrative Law and the Research Institute for Maritime Law at CASS on May 4th, Prof Proelß and his Chinese colleagues touched upon a wide variety of urgent issues. For instance, the Chinese experts showed a huge interest concerning the question what actions the countries of the European Union and the EU itself can take to cope with the challenges caused by the influx of refugees starting from 2015. Prof Proelß underlined that Germany cannot solve the situation on its own and that the EU has to overcome the challenge through united actions based upon the law. However, he also admitted that the law had its limitations and thus the management of the challenge also required political and societal approaches. Apart from that, Prof Proelß and his Chinese colleagues discussed the consequences of Brexit, the maritime dispute in the South China sea and the implementation of the Chinese environmental law and energy law.
On May 5th, Prof Proelß gave two presentations within the context of two discussion meetings at the China Institutes of Contemporary International Relations (CICIR).
During the discussion meeting titled The Modalities and Consequences of Brexit – An Analysis from the Perspective of European and International Law in the morning of May 5th, Prof Proelß gave insights into modalities and possible consequences of Brexit especially from a legal point of view. During the following discussion the Chinese participants showed interest in the question whether there could be changes to the Article 50 of the Treaty of the European Union or what the Brexit means for the future of British law.
During the discussion meeting The International Law of the Sea as a Mechanism of Global Governance to Settle Conflicts of Interests - German and European experiences in the afternoon of May 5th Prof Proelß, referring to the UNCLOS tribunal decision over the South China Sea (SCS) issue, drew the conclusion that each party should make use of the right to present their arguments before the court, should invest in the study of international case-law in order to reduce uncertainty regarding the outcome of future cases and should try to avoid uncertainties by conducting honest negotiations in a spirit of mutual respect before recourse was made to international adjudication.
In the following discussion the two sides especially discussed China’s trust in international law and its commitment towards the further development of international law in the future.