This post was originally published by the Harvard Law School Forum on Corporate Governance.

TikTok’s travails under the Trump and Biden Administrations are typically portrayed as a clash between national security interests and First Amendment protections. This tension is the focus of TikTok’s suit against the U.S. Government over a 2024 law that subjects the video platform to a ban in the United States unless it is divested from Chinese control by January 19, 2025.

But TikTok’s problems in the United States expose another serious tension: between longstanding legal doctrines of corporate identity and separate personality, on one hand, and increasing concerns over Beijing’s use of erstwhile private commercial firms as instruments of state influence, on the other. The divest-or-ban legislation illustrates that corporate law’s answers to the question of corporate identity and separateness are not definitive in a de-globalizing world.

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This article originally appeared on the Stanford Law School's website.

Curtis J. Milhaupt, the William F. Baxter-Visa International Professor of Law at Stanford Law School, recently received a “Best Paper” award from the European Corporate Governance Institute (ECGI) for his 2023 working paper, “The (Geo)Politics of Controlling Shareholders.” Milhaupt is also a senior fellow, by courtesy, at the Freeman Spogli Institute for International Studies and affiliated faculty at Shorenstein APARC.

Milhaupt’s paper “makes a substantial and novel contribution to the literature on corporate governance and controlling shareholders by analyzing how the features of firms with controlling shareholders enhance their geopolitical significance,” according to a press release from ECGI. His paper advocates for the study of corporate governance to extend beyond traditional economic analysis to incorporate geopolitical and political-economic dimensions.

“Corporate governance scholarship on controlling shareholders has focused almost exclusively on shareholder wealth diversion and creation,” said Milhaupt, who was appointed a Fellow of the ECGI in January 2024. The ECGI selects as fellows individuals who have demonstrated scientific excellence or other outstanding achievements in the area of corporate governance and stewardship.

“It is an honor to be recognized for my effort to analyze the complex interplay between corporate control and wide-ranging geopolitical and domestic political concerns,” he said.

Milhaupt focuses his research and teaching on comparative corporate governance, the legal systems of East Asia, and Chinese state capitalism. In addition to numerous scholarly articles, he has co-authored or edited seven books, including Regulating the Visible Hand? The Institutional Implications of Chinese State Capitalism (Oxford, 2016), Law and Capitalism: What Corporate Crises Reveal about Legal Systems and Economic Development Around the World (Chicago, 2008) and Transforming Corporate Governance in East Asia (Routledge, 2008).

The prize will be awarded at the ECGI Annual Conference in Brussels on October 8, 2024.

You can view Professor Milhaupt's presentation of his award-winning paper on the Stanford Law School's YouTube channel.

Reza Idria is an Assistant Professor in Social Anthropology at the Universitas Islam Negeri (UIN) Ar-Raniry (Ar-Raniry State Islamic University) in Banda Aceh, Indonesia. He holds an MA and Ph.D. in Social Anthropology from Harvard University as well as an MA in Islamic Studies from Leiden University, The Netherlands. Born and raised in Aceh, the only province adopting Sharia Law in Indonesia, Reza’s research interests are at the intersection of legal anthropology and Islamic law. 

Idria is the Lee Kong Chian NUS-Stanford Fellow on Contemporary Southeast Asia at APARC for the 2023 winter quarter. The fellowship, which is hosted jointly by APARC’s Southeast Asia Program (SeAP) and the Faculty of Arts and Social Sciences at the National University of Singapore, raises the visibility, extent, and quality of scholarship on contemporary Southeast Asia.

During his LKC NUS-Stanford fellowship, he will turn his doctoral dissertation, “Tales of the Unexpected: Contesting Syari’ah Law in Aceh, Indonesia,” into a book manuscript. This work is an anthropological study that examines a wide range of social and political responses that have emerged with the state implementation of Islamic law. The empirical data for this research project has been gathered in Aceh, the only Indonesian province that has adopted Sharia. Dr. Idria is also embarking on a new research project that focuses on the legal and socio-economic consequences of the local regulation on Islamic banking.

This interview originally appeared on the website of the Faculty of Arts and Social Sciences at the National University of Singapore.

What sparked your interest in studying the social and political responses to the state implementation of Sharia law in Aceh, Indonesia?

There are some puzzling conditions in Aceh that sparked my interest to conduct this study. I grew up immersed in Acehnese Muslim culture and have lived through the historical and political transformation of the region since the period of armed conflict. In my view, the government’s efforts to translate Sharia into positive law in Aceh was motivated largely by political needs, rather than the religious ones. Islam has indeed a pronounced role in Aceh society since pre-colonial time, and the province is often called “Verandah of Mecca”, but it was only in 1999 the central government decided to impose Sharia law in the province in an attempt to quell the Free Aceh Movement rebellion.

In fact, it was the tsunami of 2004 that actually helped stop the war and led to the signing of peace agreement. However, it did not prevent the government to apply more aggressive Sharia law in the post-conflict and post-tsunami Aceh. While many Acehnese appeared supportive to the implementation of Sharia, I was also troubled with the impression created by many media outlets that all Acehnese accept Sharia law without question. Despite the aggressive enforcement directed by the state, my study found some elements of Acehnese society have passionately contested and challenged the official understanding of Sharia.

What challenges did you encounter when carrying out your fieldwork in Aceh for your upcoming monograph, Tales of the Unexpected: Contesting Syari’ah Law in Aceh, Indonesia?

I began gathering considerable data for this study in 2011 when I was involved in a joint research project on the Indonesian experience of Islam and politics after the fall of Suharto. Given the sensitivity of this topic conducting fieldwork was challenging. Some people were suspicious of my academic inquiry. People were mostly reluctant to speak on anything related to Sharia Law. Even those who have engaged in activism against Sharia law did not want to be seen as openly antagonistic to it. Many would say that they are not resisting Sharia as such, rather seeking to rescue Sharia from associations with fundamentalism. I think it is because the Acehnese perceived that their identity is deeply entwined with Islam, therefore critical voices to the state-led Sharia implementation are often subdued due to the fear of being labeled anti-Islam. It’s a dangerous stigma and I think no one could survive in Aceh with that stigma. Such condition contributes to people’s ambiguous and ambivalent reactions toward Sharia. To me this also explains why resistance to Sharia has eventually taken many forms and is often performed in unconventional manners. Sometimes so subtle that they might not seem like resistance at all.

How have the diverse range of local groups who have engaged in activism against Sharia law enforcement in Aceh cooperated with each other?

There was some cooperation and mutual support among local groups who share dissenting views concerning the state interpretations of Sharia. For example, in responding to the provisions of Islamic Criminal Code of 2009 (referred locally as Qanun Jinayah), intellectuals from several local universities, cultural activists, and dozens of civil society organizations worked together to criticize many controversial aspects of the proposed law. They formed an advocacy network called Jaringan Masyarakat Sipil Peduli Syariat (the Civil Society’s Network concerning Sharia). JMSPS activists used various strategies, from lobbying to organizing a series of demonstrations. They went to the Aceh Parliament condemning members of the parliament and the governor of Aceh had they not stopped proposing the law. The movement was relatively successful as the Sharia Criminal Code of 2009 was postponed because Governor Irwandi Yusuf eventually refused to sign it. However, conditions have changed in the following years, especially after Irwandi lost the gubernatorial election in 2012. His successor signed the Qanun draft and passed the Sharia criminal law in 2014.

How has Komunitas Tikar Pandan, the cultural organization you co-founded in Aceh in 2002, played a role in the responses to Sharia law implementation?

Komunitas Tikar Pandan continues to organize various culturally oriented activities such as creating writing workshops, painting exhibitions, film screenings and discussions. The organization’s mission from the very beginning is to generate critical awareness, especially for the young, about the dangers of cultural hegemony and structural oppression in the name of identity politics and religion. One example, in responding to the absence of public cinema in Banda Aceh which has been considered by Aceh’s Ulama Council incompatible to the spirit of Sharia, Komunitas Tikar Pandan provides a mini-cinema and hosts a series of film screenings and discussions as a rebuke. Tikar Pandan’s office occasionally became sanctuary for some members of marginalized groups in Banda Aceh.

How do activist groups based outside of Aceh provide assistance to local Aceh activists whose resistance to Sharia law enforcement has met with opposition from local authorities?

For some cases such as the anti-punk crackdown in 2011 and the persecution of Aceh queers in 2018, support and assistance from people outside Aceh were helpful and forceful imposing pressure upon the Sharia authorities to evaluate their actions. Legal Aid Foundation (LBH) from Jakarta offered legal assistance to release the arrested punks. International expressions support for Aceh’s punks also took place across the globe, from Moscow to San Francisco, under the slogan “Punk is Not Crime” condemning the crackdown. Some international human rights organizations also provided aid advocacy and financial support to LGBTQ activists in Aceh.

How has local public opinion of Sharia law changed since it was implemented in Aceh, and what factors have been most influential in shaping this change?

At the beginning, there was a tremendous hope that the Sharia law would restore justice in the region affected by decades of bloody armed conflict. The conflict period was the period of profound lawlessness for the Acehnese. They were killed, tortured, and raped but no perpetrators had been brought to trial. That’s why I think people in Aceh were enthusiasts when the central government offered Sharia law to the province in 1999. Gradually the implementation has given rise to its own issues and resulted in the creation of multiple injustice and many forms of violence too. I think there are two factors that have been most influential in shaping and creating the negative image of the current Sharia implementation in the province, first morality policing through the special unit known as Sharia police. Second, the enactment of spectacle punishment, namely hukum cambuk (public caning). While Sharia promises to be a comprehensive guidance in all aspects of life, the Aceh government has been criticized by many ordinary Acehnese to focus merely on symbolic aspects of Islam, while neglecting what they viewed as more “substantial” concerns.

What developments do you anticipate happening in Aceh’s political and social scene in the near future that could affect the enforcement of Sharia law?

Aceh has been the poorest province in Sumatra within the last five years according to official survey. Despite receiving tremendous financial assistances from international agencies during the tsunami recovery and from the central government (so far more than $7.9 billion) Aceh’s economic growth continues to be the lowest in Sumatra. Following the Helsinki peace accord, the Aceh province is entitled to receive special autonomy funds from its central government for twenty years, from 2008 to 2027. So, it is only a few years left and with the rampant corruption and lack of interest from investors it is hard to imagine any changes for a better condition will occur in Aceh. I think poor and disempowered Acehnese Muslims will likely continue to see more perplexing regulations in the region promulgated in the name of Sharia.

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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.

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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.

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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.