China’s engagement with the ITLOS climate change advisory proceedings and its strategic formalism in international law
By Ryan Martínez Mitchell
Published on 6 February 2024
Several months ago, Beijing decided to take a stand against the expansion of advisory opinion jurisdiction to the full International Tribunal for the Law of the Sea (ITLOS), as well as the potential use of such jurisdiction to define climate change obligations under the law of the sea.
The oral address of Ma Xinmin, Director-General of the Department of Treaty and Law of the PRC Ministry of Foreign Affairs, was given on 15 September 2023 in opposition to the request by the Commission of Small Island States on Climate Change and International Law (COSIS) for an ITLOS advisory opinion on states’ duties as to climate change. In part, he explained, China’s stance was taken in order to guard against ‘the fragmentation of international law.’
As this blog post argues, China’s opposition to the COSIS request is a significant but typical example of its evolving state practice, with implications both for the issue of climate change specifically and for international legal order more generally. Though it is by no means alone in its general stance, Beijing’s newly vocal advocacy of limitations on advisory jurisdiction for international tribunals embodies an increasingly coherent national vision of international law. The content of that vision can be described by its defenders as preserving the principles of state consent, textual fidelity, interpretive consistency (thus anti-‘fragmentation’), and a firm positivist commitment to the exclusive authority of identified formal sources of legal obligation.
For those on the other side of matters such as COSIS’s request, however, Beijing’s current view of international law’s interpretive possibilities exhibits excessive jurisprudential conservatism. By seeking to foreclose an articulation of state duties to reduce greenhouse gas emissions and combat sea level rise, China’s stance would limit ITLOS’s ability to pronounce on both an important legal question and a matter of existential concern for small island states. More broadly, some of the key functions of international tribunals, such as providing a forum for the expression of shared ethical values, facilitating their equitable application to legal controversies, and helping to shape the development of related legal doctrine, would likewise be inhibited.
As I will argue, China’s engagement with the COSIS proceedings is one of the clearest expressions yet of its emerging disposition towards ‘strategic formalism’ in legal interpretation. By more systematically diminishing the evolutionary potential of tribunals and other norm-interpreters, rather than simply ignoring the relevant proceedings, this argumentative strategy may indeed help to deter the fragmentation of international law (though it remains debated to what extent this is a genuine concern, as well as whether non-formalist responses, such as a positive embrace of legal pluralism or global constitutionalism, may be better options). The approach also, not coincidentally, tends to preserve China’s national interests in particular cases. However, as this jurisprudential agenda gathers momentum, the dynamism of international law and its capacity to address problems of global concern risk being marginalised.
Beijing asserts its interpretations
A sign of the importance placed on these proceedings by Beijing is that Ma’s remarks marked the first time a representative of the PRC has appeared in oral argument before ITLOS. More strikingly, it was only the second time that a PRC representative has made an oral submission in advisory proceedings before any international tribunal (the other being by Xue Hanqin in the ICJ’s Kosovo Advisory Opinion proceedings in 2009, before her own later appointment as an ICJ judge). In June, Ma had also submitted a written statement expressing China’s views.
As has been explored in these pages in a recent symposium, the COSIS proceedings stand alongside advisory requests before the ICJ and the Inter-American Court of Human Rights as major efforts to prompt the articulation of stronger state obligations to reduce greenhouse gas (GHG) emissions and other contributions to climate change. While Beijing has, alongside all other General Assembly states, voted in support of Vanuatu’s ICJ request, its submissions in the COSIS matter indicate firm opposition to the strategic form of international law practice being adopted by the small island states. This entails rejecting advisory jurisdiction for the full ITLOS tribunal, classification of GHG emissions as ‘pollution’ under the UN Convention of the Law of the Sea (UNCLOS) Art. 192 et seq., as well as any attempt to make climate change mitigation duties a basis for ‘liability or compensation’ – a conceivable outcome based on the COSIS request, but one considered very unlikely to result from the ICJ’s eventual opinion.
While continuing its express acceptance that general advisory competence has been granted to The Seabed Disputes Chamber of ITLOS over matters directly relating to the Seabed Area, China has rejected the argument put forward by COSIS that ITLOS as a whole can exercise such competence. In doing so, it has newly intensified and made more rigid the position it took ten years earlier, in its written submission to ITLOS during the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SFRC). There, while denying advisory competence to the full tribunal, the 2013 Chinese statement included a conciliatory section on ‘The Way Forward: Enlargement of Advisory Competence by Way of Amendment of UNCLOS’, which suggested that states parties might at some point pursue an amendment to the Convention ‘were there a genuine need for the advisory competence to be extended to the full bench of the ITLOS.’ Non-committal as that suggestion was, and inconsequential as it has so far proved, it was much less clear a drawing of battle-lines than this year’s submissions.
Ma’s remarks also emphasised that climate change obligations are fully embodied in the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement (which he also presents as precluding claims of state responsibility by setting up an explicitly non-litigable norm). As stated above, he also rejected general advisory competence of ITLOS on the basis that its specific conferral to the Seabed Dispute Chamber ruled out its availability to the full tribunal. And, once again, the definition of ‘pollution’ under UNCLOS was to be read as exclusive of unstated categories, such as GHGs and their resultant ocean acidification.
It should be noted that a single strategy of legal interpretation links each of these threads of China’s position. In regard to each of the above arguments, the Chinese stance reflects a canon of statutory construction, expressio unius est exclusio alterius (‘the expression of one thing is an exclusion of another’), whereby limited provisions in the text of a legal instrument are interpreted as ruling out unstated items. While this is indeed a generally-accepted and venerable legal maxim, which has been occasionally applied in the jurisprudence of the ICJ as well as other international tribunals, it is hardly an absolute and unwavering principle. In both domestic and international courts, expressio unius is balanced against many potentially countervailing factors. Indeed, its relevance to international law is often sourced to Article 31(1) of the Vienna Convention on the Law of Treaties, which holds that ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose‘ (emphasis added). Ordinary meaning of the treaty text is, in other words, to be weighed against the overall context and the purpose of the instrument. Yet the latter two factors fade into irrelevance when text, and formalistic rules of statutory construction, are emphasised to the near total exclusion of other concerns.
Great powers, small powers, and legal statecraft
Taken individually, China’s positions on the COSIS proceedings are hardly unique. Many of them are shared by at least some other states to have made submissions. While some, such as India and the United Kingdom, resemble China in taking clear positions against advisory competence for the full tribunal, others, including Japan, and the European Union, expressed varying degrees of openness to ITLOS’s accepting the request. Yet several of the latter these submissions also expressed views emphasizing the status of UNFCCC and the Paris Agreement as the relevant sources of norms on climate change, the limits of individual state responsibility under those norms, and minimizing the scope of any judicially-discovered duty.
China would seem to have an especially pronounced interest in opposing law of the sea norms regarding duties to reduce GHG emissions, given its ongoing status as the largest emitter (on a non per-capita basis). In particular, its rapidly-expanding shipping industry is also the world’s largest CO2 emitter in that sector. Yet each of the above polities, while clearly affected by and expressing concern about the effects of climate change, is also a major beneficiary of the current status quo of global political economy. Overall, their overlapping postures regarding the COSIS request stand in contrast to the views expressed by the small island states, who are among the most obvious victims of negative externalities from that current status quo.
For the COSIS members, it is quite rational to make use of potentially flexible legal standards (such as the definition of ‘pollution’ under UNCLOS) to pursue a form of legal statecraft employing the rhetorical and mobilizing resources of international law in defence of their (trans)national interests. That practice entails, as Douglas Guilfoyle has written recently, seeking to ‘frame the particular wrongs they have suffered as universal’ and to ‘mobilize a supportive constituency’ with legal arguments. The COSIS proceedings have amply demonstrated how international tribunals serve as a meeting ground between such progressive, even insurgent appeals to international law and the status quo-orientation of major powers.
It is notable, however, that China’s views as expressed in the COSIS matter as well as in other recent tribunal proceedings go beyond a situation-specific defence of the status quo, and instead appear to comprise a considered stance on international law interpretation in general. This was indicated in part by Ma’s verbal rejoinder to states that cited the 2016 South China Sea Arbitration in their submissions. Restating Beijing’s view, Ma indicated that the arbitral tribunal in that matter had ‘acted ultra vires, erred in fact finding, misinterpreted and perverted the law’ and given rise to ‘so-called ‘awards’ [that] are null and void and should not be invoked as a legal basis.’ Beijing’s UNCLOS reservations regarding dispute resolution on questions of sovereignty, this argument goes, precluded any arbitral jurisdiction over the South China Sea dispute. This ongoing rejection of the SCS arbitration as a valid process directly impacts the arena of environmental obligations in the law of the sea, given that the award was the most recent and robust articulation of states’ duties under Part XII of UNCLOS in relation to ‘relevant international rules’ having to do with pollution and harm to marine environments.
However, the SCS arbitration also played a role in the more general opposition that Ma articulated against ‘the fragmentation of international law in relevant fields’ that could result from recognizing advisory competence for the full tribunal of ITLOS. In both matters, Beijing has expressed an intense focus on treaty text and a refusal to accept the progressive evolution of legal standards or expansive jurisdiction for tribunals. Beyond the law of the sea, China has adopted very similar positions in other matters, sometimes surprisingly. For example, this was the case even in the 2019 Chagos Advisory Opinion proceedings at the ICJ, which involved issues touching upon traditional Global South (and Chinese) critiques of Western colonialism.
China’s written submission in the Chagos proceedings subordinated a rhetorical commitment to ‘supporting the process of decolonization’ under a countervailing stance that the Court should ‘uphold and respect the principle of consent when a purely bilateral dispute is involved.’ I.e., the Court should decline to exercise its advisory competence in the matter. Given the early history of Chinese engagements with international law – in which, as I have discussed in a recent monograph, anti-colonialism and Global South solidarity were profoundly important conceptual touchstones, albeit in occasional tension with China’s own great power aspirations – China’s position against advisory jurisdiction on such matters evidences a significant shift towards viewing international law as a tool for preserving the political-economic status quo with only modest (and nationally-directed, rather than judiciary or civil society-led) revisions.
China’s formalistic jurisprudence and the future of international legal interpretation
It goes without saying that China is no exception in its role as a great power that seeks to shape international law in line with its own interests. If anything, it is notable that it has only extremely recently made this a fully explicit goal of state policy. This is a multifaceted effort, involving the development of China’s ‘foreign-related rule of law’ (i.e., foreign relations law) at the domestic level, as well the creation of new international institutions and active engagement in existing institutions. Yet submissions before international tribunals, as in the cases noted above, also represent a major forum for such legal norm-generation (or inhibition).
For this reason, it is significant that China has eschewed the option taken by its fellow great powers the United States and Russia to simply ignore the ongoing ITLOS proceedings. Just a few years ago, it would have been expected to adopt the same tactics of splendid absence. That it has now chosen instead to make its views especially clear suggests an intent to more actively promote a specific vision of international legal interpretation in line with its consistent focus on treaty texts, exclusion of progressive or purpose-oriented applications of legal standards, and limits on advisory competence and other forms of expansive jurisdiction. Viewed in light of international legal history, Beijing is taking up the role of championing what Matthias Herdegen in his Max Planck Encyclopedia of Public International Law entry on Interpretation in International Law aptly refers to as a ‘textual approach’ to international legal interpretation that has, historically, ‘competed with … teleological interpretations’ focused on purpose, context, and considerations of justice, etc. It is fair to say that these views remain in tension. For example, the late ICJ Judge Antônio Augusto Cançado Trindade, one of the most committed advocates of a teleologically-oriented international jurisprudence, frequently lamented that notions of ‘state voluntarism’ led to self-imposed limits in the court’s reasoning.
At the other end of the interpretive spectrum, diminishing the scope for teleology (and thus ‘nomo-dynamism‘), indeed appears to be at the heart of China’s evolving international law engagements. While Marxist-inflected policy terminology such as ‘international legal struggle’ monopolises journalistic attention in the West, the reality appears much closer to a textualist jurisprudence intended to limit equitable discourse and legal pluralism. Even more than cases of non-appearance, this advocacy of a hyper-formalistic stance in court proceedings can seem ironic in light of China’s historical record, across regimes, of using legal arguments to demand reforms to the international order, in particular to address the concerns of colonised peoples. Indeed, China’s international lawyers were historically major advocates of advisory jurisdiction specifically, with the country’s first international judge, Wang Chonghui, introducing the conference motion in 1945 that confirmed its retention in the statute of the ICJ.
Beijing today has not rejected that legacy in any explicit sense. But with China’s increasing centrality to international legal order has come a proclivity for discouraging the development of new venues for jurisdiction or norm-generation, even as the country takes more steps to support and influence institutions within the bounds of its explicit consent. As Beijing continues to put resources into developing its voice in international law, and aligning other states with its views, we may face an era more characterised by the elevation of strictly-interpreted treaty texts, marginalization of emerging custom, and sharpened limits on tribunals. This disposition has also been on display in China’s arguments during the negotiation of treaties, with the Biodiversity Beyond National Jurisdiction (BBNJ) treaty being one notable example.
Yet interpretations can change – a more progressive stance from Global North states on matters like the COSIS request, rendering arguments such as Ma’s into outliers rather than just intensified forms of a widely-shared pro-status quo bias, could incentivise Beijing to be more flexible. This would, hopefully, help to expand room for tribunal jurisprudence to reflect evolving ethical standards on matters of global concern. It remains to be seen whether such a jurisprudential shift could occur in time to help the sinking islands and their inhabitants.
Ryan Martínez Mitchell is an Associate Professor of Law at the Chinese University of Hong Kong. His publications on international and comparative law, legal history, and Chinese law have appeared in a range of leading scholarly journals, and his commentary and analysis on related topics have also been widely published and cited. He is the author of Recentering the World: China and the Transformation of International Law (Cambridge University Press, 2022), and is currently working on a book about comparative international law in an age of great power conflict. He is also a Non-Resident Fellow at the Quincy Institute for Responsible Statecraft. He is on X (formerly Twitter) @zeguoqiang.