CYIL vol. 13 (2022)

MAX HILAIRE

CYIL 13 ȍ2022Ȏ

China’s Attitude Toward Third-Party Adjudication and Dispute Settlement China does not believe in third-party adjudication. For China, all interstate disputes should be settled through bilateral negotiations, instead of through third-party adjudication. China has been a member of the International Court of Justice since it joined the UN but has never brought a case before the court, nor would it allow a country to bring a case against it. Although China is a party to the United Nations Convention on the Law of the Sea (UNCLOS), and a member of the Tribunal of the Law of the Sea (TLOS), it refused to recognize the jurisdiction of the tribunal to hear a claim brought by the Philippines stemming from the South China Sea dispute. Following the Permanent Court of Arbitration decision, China rejected the judgment that its “Nine-dash line” violated the Law of the Sea Convention. 96 China has based its claim to 80% of the South China Sea on “historic rights,” which it has refused to specifically identify. Following the PCA ruling in July 2016, China released a White Paper calling for a negotiated settlement with the Philippines. China criticized the ruling as illegitimate and said the decision had no credibility. 97 China does not adhere fully to the freedom of navigation provision of UNCLOS. It has repeatedly harassed US naval warships navigating the South China Sea. China has refused to recognize the jurisdiction of the Tribunal of the Law of the Sea (TLOS) or to subject its extended claims over the South China Sea to third-party adjudication. China adheres strictly to the principles of sovereignty and non-intervention to shield its domestic policies from international scrutiny. Like all authoritarian regimes, China has a different conception of international law than democratic states. For Chinese rulers law stems from the dictate of the Communist Party and does not apply to high-ranking officials of the party. China has never appeared before the International Court of Justice (ICJ) as a plaintiff or defendant. It did not sign the Optional Clause, which allows states to refer a dispute to the court without the consent of the other party. Although a Chinese national sits on the court, her vote in ICJ cases tends to be closely aligned with China’s foreign policy. China is not a party to the Rome Statute for the International Criminal Court (ICC) and shows no intention of joining the court. The ICC is not a threat to China’s sovereignty, as the court does not intervene in a case unless it has jurisdiction, or the state party is unwilling or unable to prosecute perpetrators of atrocity crimes. China remains suspicious of international tribunals and views them as encroaching on its sovereignty. Surprisingly, one area in which China has accepted third-party adjudication is the WTO. China has initiated several cases before the WTO dispute settlement board but its compliance record with WTO rulings against it is mixed. The approach taken by the Trump administration to impose unilateral tariffs on China to force it to buy more American-made products, grant equal access to American companies, and protect American intellectual property rights will not change China’s trade and investment policies but will certainly be challenged by China through the WTO. Meanwhile, China has simply retaliated in kind and imposed import restrictions on American soya beans and pork products. Trump’s attempt at delisting Chinese companies from the US stock market will do little to curb China’s 96 PERLER, J. Tribunal Rejects Beijing’s Claims in South China Sea, https://www.nytimes.com/2016/07/13/ world/asia/south-china-sea-hauge-ruling.htm. 97 White Paper, The State Council of the People’s Republic of China, China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea , (July 13, 2016), http://english.gov.cn/state_council/ministries/2016/07/13/content_281475392503075.htm.

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