Yesterday, Geraldo Vidigal put up a really interesting post looking at recent patterns of use of the World Trade Organization’s dispute settlement system. One thing that was particularly striking to me was the extent to which China has participated in the WTO dispute settlement system given its previous position on resolution of disputes by international tribunals. Geraldo’s chart of the latest 100 disputes at the WTO shows that only the United States, the EU and Japan have initiated more cases at the WTO in recent years than China (with Japan initiating just one more case than China in this period). Given that the WTO system is the most widely used inter-state dispute settlement system, it might not even be an exaggeration to say that: in terms of numbers of cases brought before international tribunals by states, China is one of the most enthusiastic state users of international tribunals! Of course, that enthusiasm is only before one particular system.
In October 2010 I posted here on EJIL:Talk a piece titled “Is China Changing its View of International Tribunals?“in which I noted that China’s view on international tribunals more broadly seemed to be changing. At the time, I noted China’s participation in the Kosovo Advisory Opinion at the ICJ, which was the first time that the People’s Republic appeared in oral hearings before the ICJ. I also pointed out China’s participation, around the same time, in the written and oral phases of International Tribunal for the Law of the Sea’s (ITLOS) first advisory proceedings – the Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber). In 2014, China submitted a substantial written statement in the Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC) though it did not take part in the oral hearings.
Of course, we have non-participation by China with respect to the United Nations Convention on the Law of the Sea Annex VII arbitration initiated by the Philippines (in respect of which the tribunal issued an award on jurisdiction a couple of weeks ago). However, perhaps we should be cautious into reading too much from the Chinese attitude to that particular case to the general Chinese attitude to international tribunals – especially as it took part in ITLOS proceedings just last year. [Incidentally, that strategy of non-appearance in one case while taking part in another is not dissimilar to the US not appearing at the merits stage of the Nicaragua case at the ICJ but then instituting proceedings in the ICJ in the ELSI case just months after delivery of the judgment in the Nicaragua Case].
Without a doubt, we should also be cautious into reading too much from the Chinese attitude to WTO dispute settlement to Chinese attitude to international tribunals more generally. Apart from isolated (though significant) appearances before the ICJ and ITLOS, which were only in advisory opinions, there has been no broader use of international tribunals by China (no broader than the WTO that is).
Nonetheless, there are intriguing questions as to why China feels so comfortable with engaging in WTO litigation given its historical stance with respect to international tribunals. In beginning to think about the answers to that question, it would be important to separate out the question of Chinese desire to become a member of the WTO from its use of the dispute settlement system. Clearly, being a part of the WTO not only gives China access to benefits of the WTO treaties, but also gives it a seat in the WTO rule making process (to the extent that any new WTO rule making is still happening these days). However, while the WTO dispute settlement system entails compulsory jurisdiction, there is no compulsion to bring cases or initiate complaints within the system. But not only is China is being sued in the system, it is actively suing too! That is significant. This appears to suggest that China takes the view that where use of litigation is useful/helpful/essential in securing the benefits that it thinks are guaranteed by that treaty regime it has no objection to doing so. The question may then be asked why does it not do so elsewhere? It may that the compulsory jurisdiction feature of the WTO Dispute Settlement system, coupled with the fact that China is regularly sued in that forum [Geraldo’s figures indicate that only the US has, in the last 100 disputes been respondent more than China] makes a difference to the views of China as to whether it should also act as complainant. If it is locked into a system which is regularly being used against it, then why not use the system against others as permitted by that system. Or it could just be the stakes with regard to disputes in the WTO are sufficiently high for China to seek adversarial settlement but not thought to be so high as to preclude handing over settlement to a third party. Thoughts from readers on these issues would be welcome. As an aside, the same questions posed here about the use of international tribunals may be asked of the US, the most active complainant in the WTO system, but which today rarely initiates litigation in other international tribunals not dealing with trade.