China’s ICJ Judge Xue Hanqin Publicly Defends China’s Non-Participation in UNCLOS Arbitration [Updated]

by Julian Ku

xue[This Post has been updated]. One of the main benefits of attending a conference (rather than just reading descriptions of its proceedings), is the chance to have face-to-face exchanges with individuals you normally never get a chance to meet.  One of the unusual aspects of the Asian Society of International Law is that it draws lawyers from many different Asian countries, even Asian countries locked into disputes with each other.  Like the Philippines…and China.

Which is why I was so pleased to witness a frank exchange last week at AsianSIL’s biennial conference in New Delhi, India between two unofficial but influential representatives of each country’s legal positions in the upcoming Philippines-China UNCLOS arbitration. In one corner, Prof. Harry Roque from the University of the Philippines presented a relatively even description of the Philippines’ claim against China during a panel on the Law of the Sea in Asia (click here for his blogging on this same event).  In the other corner, was Judge Xue Hanqin, China’s member of the International Court of Justice.  Although she was not listed as a panel participant, she stood up after Prof. Roque’s presentation to offer a 15-minute extemporaneous defense of China’s position.

Judge Xue is no longer officially affiliated with the Chinese government, but she has served in high diplomatic positions before her current post.  One of her prior positions, indeed, was as China’s Ambassador to the Association of Southeast Asian Nations (ASEAN) where she was involved in negotiations with Vietnam over maritime rights.  Moreover, she has served a general legal adviser to the Chinese Ministry of Foreign Affairs, including on its submission to the ICJ in the Kosovo advisory proceeding.  Her views are likely to be close or the same as the views of the Chinese government on these issues.  Since the Chinese government has offered almost no official explanation of its legal position, her statement may be the best we will get from China in the near future.[*UPDATE: On the other hand, Judge Xue wants to make clear she is not representing China in any official or unofficial capacity and that she does not endorse the summary of her views below. See below for her full disclaimer].

The following is based on my notes of her presentation. They are necessarily incomplete, but hopefully a fair summary of her views.

Judge Xue began by praising the “important presentation” by Prof. Harry Roque.  She explained that her purpose was to “enhance understanding of China’s position” because China has “had a long silence” on this issue.  She noted that her background with ASEAN kept her cognizant of the issues at stake. 

She then agreed with Prof. Roque that China should be criticized for not explaining its position on the dispute.  She would endeavor to do so.

She noted that (as Prof. Roque had explained), the UNCLOS arbitral tribunal had no jurisdiction over territorial disputes.  She then pointed out that all of the evidence presented by the Philippines in their notice of arbitration was about territorial boundaries.  China was not the only country to limit the jurisdiction of the UNCLOS tribunal, indeed, 40 countries have made similar declarations to China’s, including India. 

As to the “Nine Dash” line, she offered two questions to defend its claims.  First, she asked whether a country is required to give up all prior territorial claims? Put another way, Judge Xue pointed out that the Nine Dash Line was drawn in 1947 well before UNCLOS was established.  Second, she asked why, if the Nine-Dash Line was so controversial, haven’t any countries in the South China Sea raised objections until recently.  The answer, she announced, is the discovery of fossil fuels under the seabed.  

She also pointed out China has never treated the Nine Dash Line as a boundary since it has never tried to exclude or otherwise prevent international navigation in the South China Sea.   

She then asked another question (and one many of us have been asking):  Why has China not appeared to contest jurisdiction?

She answered this question indirectly.  “If you look at the [Philippines’] application,” she said, “no country can fail to see that it was designed, oh-so-cleverly designed, so as to mix the questions of jurisdiction with the merits.”  For China, she explained, rejecting arbitration here “is a matter of principle.” 

Additionally, the various claimant states in the South China Sea had agreed in their Code of Conduct to settle disputes among themselves through negotiations.  Indeed, she noted that when China approved the Code of Conduct back in 2009, the legal department of the Ministry of Foreign Affairs objected to language in the code of conduct that seemed to make the requirement to negotiate mandatory rather than simply a non-binding promise.  But eventually, the legal department yielded and the Code of Conduct was approved as (at least in China’s view) an obligatory legal obligation.

Judge Xue also referred to a recent article on the South China Sea dispute in the New York Times Magazine.  In that article, she noted that a graphic of the different islands in the South China Sea shows that China doesn’t actually occupying most of the islands. She seemed to suggest that China is hardly the aggressor that it is sometimes portrayed as.

There is no doubt, Judge Xue went on to say, that the disagreements in this region are serious.  Instead of litigation, members of the ASEAN and China should work to build up trust.  They should also consider the regional characteristics and diversity of the different states in approaching international legal issues.  For instance, she said, when a defendant gets sued in China, they take it very personally and get angry at the plaintiff. 

In closing, Judge Xue reminded her listeners that during the 1997 Asian financial crisis, China played a very important role in helping its neighbors through that crisis.  That spirit of friendly consultations and dialogue should help China and ASEAN get through these disputes.   That is the spirit China brings to this situation.

 I have some further comments on this very interesting extemporaneous presentation that I will post separately, but let me just end here by saying (1) I don’t think this necessarily fully explains why China thinks it doesn’t have to submit to the tribunal’s decision on jurisdiction; and (2) linking to a blog post by Prof. Harry Roque on his reaction to her presentation.  He has a few more details of her talk that I did not capture above.  Follow his blog post, which will no doubt have more to say on this exchange soon.  At the very least, it is perhaps the first useful exchange on the legal issues in the Philippines-China Arbitration that has occurred publicly so far.

*[After this post went up, Judge Xue asked me to add this disclaimer to this post, which I do here].  Judge Xue Hanqin wishes to reiterate that she participated in the 4th Biennial Conference of the Asian Society of International Law held in New Delhi from 14-16 November 2013 in her personal capacity as a member of the said Society and her remarks in response to Professor Harry Roque’s presentation at the panel discussion on the South China Sea are solely of her own and do not represent in any way the official position of China on the issue. She also wishes to point out that her remarks are not fully and accurately reflected in Blog articles. 

http://opiniojuris.org/2013/11/20/chinas-icj-judge-xue-hanqin-publicly-defends-chinas-non-participation-unclos-arbitration/

6 Responses

  1. I just think it is inappropriate for ICJ judges to opine in public like this on an undecided dispute.  Once the dispute is over that might be ok, but I have known many many of them over the years and I think that China is less well served by this approach than if someone else in China’s government had made the statement.  I understand there was a problem with Chinese persons getting visas to the conference and she may have been the only one there and may have felt that extra burden placed on her and decided this way.  I think the organizers should have made sure there were less visa problems so that the judge was not put in this position.  This is a dispute that could lead to armed conflict and is deadly serious.  That maybe is why I am leaning toward the circumspection side on this.  I dearly hope that a fair resolution can come out of it arrived at under the appropriate international  law.  There is much history but we have to all live together on this small planet.
    Best,
    Ben

  2. I guess I would want to know if Judge Xue is a Party member.  If she is, it really doesn’t matter whether or not she still has a Government job; she is subject to Party discipline and can be assumed to be speaking for the Party.  When you are discussing China, it’s important to remember that it’s the Party that counts, not the Government.  

  3. Response… It’s hard for me to see Judge Xue’s comments as representing China’s official legal position on the case. For one thing, a well-advised Chinese objection to the tribunal’s jurisdiction would certainly avoid any engagement with the merits (nine-dash line, etc). It would also, one might expect, focus on China’s UNCLOS 298 optional exceptions, as it is clearly China’s strongest points, something Judge Xue (perhaps strategically) omits to elaborate. The point on Code of Conduct is interesting – some legal arguments for China could be developed on the basis of 2002 ASEAN Code of Conduct Declaration. Julian, do you know what is the Code of Conduct China approved in 2009 that Judge Xue referred to?
    I would agree with virtually everyone involved here that China must make clear its legal position. Non-appearance in international courts occurs from time to time; but in many (if not most) cases of non-appearance, the non-appearing party would make clear its legal position through unofficial communications. This is what China must do – after all, even if you believe that the tribunal has no jurisdiction over merits, you cannot deny the tribunal’s competence-competence. I just don’t see any rational basis on which to say that trying to win the case is not better for China’s national interest than losing the case.

  4. I have to agree with Bing Ling that this can’t be seen as an official pronouncement of China’s views – no matter Judge Xue’s former diplomatic role, her current position is decidedly non-diplomatic.  However, as Julian pointed out, it’s the most we’ve heard so far, and possibly the most we can expect in the near future.  Whether the govt approved or expected her remarks, I think they stand to benefit.  On the one hand, the intl community now has something of a statement from China.  While not official, it carries some weight.  On the other, it doesn’t bind China from making different arguments going forward, should the govt choose to proffer an argument at all (and I hope it does).
    I have to admit I’m a bit surprised by the Judge’s statements regarding the ASEAN Code of Conduct – can’t we read some limits into the negotation provision?  Futility, exhaustion, etc?  One can’t expect countries to negotiate forever.  And that’s distinct from the interaction with the UNCLOS compromissory clause, about which I need to read more.

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