Is China Changing its View of International Tribunals?

Is China Changing its View of International Tribunals?

Last month the new Chinese Judge at the International Court of Justice (ICJ), Judge Xue Hanqin, was sworn in and took her seat on the ICJ bench. One remarkable but perhaps little known fact about Judge Hanqin is that she is the only person ever to have presented oral argument on behalf of the People’s Republic of China in an ICJ case. She was counsel for China in the recent Kosovo advisory proceedings and appeared before the Court in the oral hearings held in December 2009 (see here). That was a significant moment  for international law as it was the first time that the People’s Republic of China had chosen to take part in ICJ proceedings. Moreover, it may be that the moment is part of a shift in China’s attitude towards international tribunals. This year, China also chose to take part in the first ever advisory proceedings before the International Tribunal for the Law of the Sea (ITLOS). In the proceedings before ITLOS regarding the   Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the International Seabed Area , China submitted a written statement and argued that the Court ought to exercise its jurisdiction in the proceedings. 

Since the communist takeover of China, the country has not been particularly enthusiastic about submitting itself and/or disputes involving it to the jurisdiction of international tribunals. This coolness even extended to advisory opinions. The Republic of China (under the previous nationalist government)  had submitted written statements to the Court in the first two advisory proceedings before the International Court of Justice (the Conditions for Admission Case 1948 and the Reparations for Injuries case 1949) though it did not take part in the oral hearings. But we now see a change at least with respect to advisory opinions. It is not clear why the Chinese government decided to appear before the ICJ in the Kosovo advisory proceedings. In her oral argument before the  ICJ in the Kosovo Opinion, Xue Hanqin stated that:

“The Chinese Government attaches importance to the advisory opinion of the Court on the question of Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo. This case raises a number of fundamental issues of international law, concerns the lasting peace and stability in the Balkans and affects the international legal order. At the invitation of the Court, the Chinese Government filed a Written Statement on the above-mentioned question on 16 April 2009. The Chinese Government has carefully studied the written submissions by other States and the authors of the Unilateral Declaration of Independence (“UDI”) in question, and considers it necessary to make an oral statement on some important issues of international law. Although this is the first time for the People’s Republic of China to participate in the proceedings of the Court, the Chinese Government has always held great respect for the authority and importance of the Court in the field of international law.”

However, though the matter at issue was significant in international political life it was not one directly touching on Chinese interests like the Nuclear Weapons Advisory  opinion where China was the only permanent member of the UN Security Council that did not appear before the Court.

Another area where China’s approach to international adjudication appears to be changing is in the field of international investment protection. China has one of the most extensive network of Bilateral Investment Treaties (with more BITs than other country other than Germany). Until recently, most of those treaties provided for recourse to investor-State arbitration only in very limited circumstances (see here). However, it is noteworthy that a new generation of Chinese BITS now provide significantly greater opportunity for investors to refer disputes with host States to international arbitration. It may well be that China is more willing to sign these agreements so as to allow Chinese investors to bring proceedings against foreign States. Indeed the only occasion thus far in which a Chinese BIT has been invoked before an arbitral tribunal has been by a Chinese investor against another State (Peru, see Tza Yap Shum v The Republic of Peru, ICSID Case No. ARB/07/6, Decision on Jurisdiction and Competence, 19 June 2009, see commentary here). However, it is significant that China is willing to expose itself to international litigation against itself.

It remains to be seen whether this trend in investment protection and a greater willingness to engage in advisory proceedings will lead to a greater acceptance of the contentious jurisdiction of international tribunals dealing with inter-State cases. Of course this is already possible in WTO proceedings.