China's compliance with selected fields of international law

BRIEFING

EPRS | European Parliamentary Research Service

Authors: Matthew Parry and Ulrich Jochheim

Members' Research Service

PE 696.207 – September 2021

China's compliance with selected

fields of international law

SUMMARY

China has ratified numerous legally binding international agreements. Like other countries, it has a

strong incentive to commit itself in this way: international agreements are a means of binding other

treaty parties; strengthening international standing; creating a favourable legal framework for trade

and investment; and, such as with the 1984 Sino-British Declaration on Hong Kong, settling

territorial questions.

At the same time, China has been careful to avoid making commitments in two areas in particular:

questions of national security and sovereignty, where it recalls a history of mistreatment by outside

powers; and human rights, where its political and cultural traditions differ considerably from those

of Western democracies. China has often included reservations precluding international arbitration

in the international agreements that it has ratified. One notable exception to this rule is China's

membership of the WTO and conclusion of trade and investment agreements, where arbitration is

such a core part of the system as to be unavoidable.

To the extent that China is accused of breaching its international commitments, these tend to

concern its perceived national security interests and territorial sovereignty, as in the case of the

governance of Hong Kong, and maritime and territorial rights in the South China Sea. In other areas,

such as human rights and climate change agreements, China is typically careful to limit its

commitments so that it does not formally breach them.

IN THIS BRIEFING

Introduction

China's approach to the WTO and trade

agreements

China's approach to international human

rights law

China's approach to international

disarmament and arms control agreements

China's approach to international climate

agreements

China's bilateral territorial disputes and

international law

Hong Kong and the Sino-British Declaration

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Introduction

In October 1971, the People's Republic of China (PRC), by a majority vote of the United Nations (UN)

General Assembly, replaced the Republic of China (RoC) as the representative government of China

in the UN. After coming to power in mainland China in 1949, the Chinese Communist Party

government of the PRC formally renounced the international agreements concluded by the RoC,

and began a process of review of, and selective accession to, those treaties. With the restoration of

Hong Kong and Macao to PRC control in 1997 and 1999 respectively, China adopted a practice of

reserving special terms for those two territories in annexes to the international agreements it signed

subsequently, in line with its treaty obligations to the governments of the United Kingdom and

Portugal.

Today, China is a party to a great number

of UN conventions, treaties and other international

agreements. However, as China's economic, political and military importance has grown, there is

increasing interest in its approach to international law, in terms of both strategy and level of

compliance. China is said to take a 'functionalist' approach to international law, by contrast to the

'normative' approach favoured by European and other Western states. China's approach to

international law is also thought to be informed by its historical, and often traumatic encounters

with Western powers and resulting 'unequal treaties', which have engendered a suspicion of

international engagements, particularly those that touch on questions of sovereignty and human

rights.

Rather than exploring the Chinese tradition of legal philosophy, this briefing focuses on specific

international agreements that China has entered into in the selected fields of trade, human rights,

arms control, climate change, and bilateral territorial questions; and the question of the extent to

which China has complied with the commitments contained in them.

China's approach to the WTO and trade agreements

China joined the World Trade Organization (WTO) in 2001, thereby acceding to the 1995 Marrakesh

Agreement establishing the WTO (WTO Agreement). In doing so, it negotiated membership terms

with other WTO members that were designed to take into account both its developing economy

status, and the significant role of the state in its economy, which meant that upon entry it was

designated a 'non-market economy'. These terms comprised a bespoke mix of 'WTO-plus'

commitments in the form of additional disciplines imposed on China, and 'WTO-minus' rights

allowing other WTO members that imported from China to take additional protective actions

against Chinese economic practices that deviated from WTO multilateral disciplines. In preparation

for its accession, China also undertook domestic economic reforms to bring its economy into

compliance with its 2001 WTO accession protocol.

By June 2021, 46 WTO cases had been registered with China as a respondent, all but six of them by

developed economies, including the EU; and 23 cases had been registered by China as a claimant,

all of them against the EU, individual EU Member States, or the United States. In its first five years as

a WTO member, China took a conciliatory approach as a respondent in WTO cases, as it sought to

minimise trade conflict with fellow WTO members. However, from 2006, China grew more assertive

as a litigant within the WTO dispute settlement framework, apparently having used its first five years

in the WTO to develop its 'litigation capacity'. China also became much more assertive as a claimant

against other WTO members, emerging in 2007 as a 'forceful litigant'. Most WTO cases against China

invoke the WTO's Anti-Dumping (AD) Agreement and Subsidies and Countervailing Measures

(SCM). Others have been brought under the General Agreement on Tariffs and Trade (GATT), the

Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, the General Agreement on

Trade in Services (GATS) and the Agreement on Agriculture (AA). Most (but not all) WTO cases

brought by China against other WTO members concern AD and SCM measures adopted by those

respondent members.

China's compliance with selected fields of international law

As China has grown more assertive as a litigant at the WTO, it has also sought to protect itself against

AD and countervailing (CV) duties claims by making the conclusion of bilateral FTAs conditional on

its recognition as a market economy, as was the case in the China-New Zealand FTA signed in 2008 –

China's first with a developed economy. China has now concluded

16 bilateral and multilateral free

trade agreements (FTAs) (not including upgrades), as well as 145 bilateral investment agreements

(BITs) (not all of them currently in force). Since 1982, China has gradually allowed further-reaching

investor-state dispute settlement (ISDS) provisions to be inserted into successive generations of its

BITs.

China has been accused of using its trading relationships, including those underpinned by FTAs, to

retaliate against trading partners that challenge it in other policy areas. In 2010, China allegedly

introduced a ban on rare earth metal exports to Japan, following clashes between a Chinese trawler

and the Japanese coast guard in September 2010, near the disputed Senkaku/Diaoyu islands in the

East China Sea; however this allegation is

disputed by some analysts. (China's goods trade with

Japan was not governed by any FTA at the time. Since then, both China and Japan have signed up

to the Regional Comprehensive Economic Partnership, RCEP). In 2015, China concluded an FTA with

Australia (ChAFTA) that provided for the phased reduction or elimination of tariffs on Australian

exports of barley, sorghum, seafood, sheep meat, horticulture, dairy and beef, and also included

ISDS provisions. However, in 2020, diplomatic relations between the two deteriorated sharply

following questions by Australia concerning China's handling of the pandemic, as well as events in

Xinjiang, Hong Kong and the Taiwan Strait. This prompted China to retaliate against Australia by

imposing AD and CV duties on Australian barley, and subsequently a 200 % tariff on Australian wine.

Australia has asserted that these actions constitute a breach of tariff reduction commitments and

trade remedy provisions in ChAFTA.

Chapter 15 of ChAFTA contains state-to-state dispute

settlement provisions, but, with China having ignored requests for minister-level bilateral

discussions, Australia has chosen to prosecute both cases via the WTO, with reference to WTO

agreements. As of 28 May 2021, a panel had been established (in other words, approved but not yet

constituted) for Claim DS598 on anti-dumping and countervailing duty measures on barley from

Australia. As of 22 June 2021, Australia was still waiting for China to respond to its request for

consultations on claim DS602 against China on Anti-Dumping and Countervailing Duty Measures

on Wine from Australia.

In January 2020, China concluded a 'Phase One' Economic and Trade Agreement with the Trump

administration in the United States. It is not clear that the agreement is compliant with China's WTO

commitments, given that it obliges China to purchase set quantities of US exports, potentially

discriminating against other trading partners as a result. China pledged to buy US$200 billion in US

exports over the course of 2020 and 2021, but has so far fallen far short of this target. Some analysts

say that the impact of the pandemic explains only part of this shortfall, and that the agreement was

inherently flawed.

As a participant in the WTO, and in its bilateral and multilateral trade negotiations, China has sought

to further economic integration while protecting its domestic policy space to liberalise at its own

pace and develop on its own terms. Consequently, it has been accused

of complying with the letter,

but not always the spirit, of its international trade agreements – in other words, doing the minimum

to address the barrier identified by its trading partners, without introducing systemic reform to

address the source of the problem. Other observers have described China's compliance with its WTO

commitments as 'mixed' or 'complicated'. EU and US criticisms of China's trade practices and level

of compliance with WTO rules include 'level playing field' concerns: insufficient access to the

Chinese market for foreign investors, intellectual property theft, and forced technology transfer –

while Chinese investors enjoy comparatively favourable access to EU markets; subsidies and other

unfair advantages enjoyed by Chinese companies, including its large state-owned enterprises

(SOEs), that are said to lack of transparency and cause over-production that depresses world prices;

and China's

retention of 'developing economy' status within the WTO system, which allows it special

and differential treatment, yet is belied by decades of rapid economic growth. However, some

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analysts argue more work needs to be done to quantify the alleged external harm caused by Chinese

trading practices.

It is not clear that, by itself, the volume of dispute settlement cases involving China at the WTO

reveals much about China's respect for international trade law, since orderly dispute settlement is,

by design, a core part of the multilateral trading system. Moreover, China's willingness to accept

international dispute settlement in trade matters contrasts with its reluctance to do the same in

other sensitive areas, such as territorial integrity and sovereignty, national security, and human

rights (see below).

China's approach to international human rights law

Western governments and pressure groups accuse China of numerous human rights abuses, in

some cases involving breaches of the international treaties to which the country is party. The most

recent high-profile case is that of the reported persecution of the

Uyghur ethnic minority in the

Xinjiang Uyghur Autonomous Region, allegedly subject to forced cultural assimilation, forced

sterilisation, mass detention and coercive labour policies. In March 2021, the EU, the United

Kingdom, the United States and Canada together imposed sanctions against selected Chinese

officials in connection with the reports. China rejects the allegations made by Western governments

concerning its policies towards its Uyghur minority, and asserts that it is merely seeking to develop

the Xinjiang region economically, in line with a 'right to develop' that should be given equal

recognition in international human rights discourse.

China's approach to international human rights law is informed by its cultural tradition, which differs

in important ways from the Western one, as well as by its historical experience with Western powers.

An important element of Chinese culture and, increasingly, its modern political tradition is the

Confucian ethical tradition, which privileges social order and hierarchy, and imposes collective

rights and obligations, by contrast to the individual rights posited by the Western tradition of

Enlightenment and formal democratisation.

On top of this, some academics trace a link between

contemporary international legal norms, including those relating to human rights, and the era of

European imperial ascendency, when Europe's colonial powers applied a self-serving 'standard of

civilisation' to legitimate the exercise of their own extraterritorial rights and the rights of their

subjects abroad, while dismissing the rights of other cultures they deemed inferior. On this account,

from the perspective of the Chinese government, contemporary Western criticisms of China's

human rights record (and of its territorial ambitions – see below) are said to be equally self-serving

and hypocritical.

This charge of double-standards was echoed in 2020, when Chinese state media

rejected criticisms of Chinese policy on Hong Kong by pointing to the Trump administration's

handling of racial unrest in the US.

China's 1982 constitution does formally recognise human rights, as a result of amendments made

in 2004: Article 33 of the constitution affirms that 'the State respects and preserves human rights'.

Articles 34 to 49 provide for a range of civil, political and occupational rights, including freedom of

speech, of the press, of assembly, of association, of procession, and of demonstration. At the same

time, these freedoms are qualified by a collective responsibility set out in Article 51: 'Citizens of the

People's Republic of China, in exercising their freedoms and rights, may not infringe upon the

interests of the State, of society or of the collective, or upon the lawful freedoms and rights of other

citizens'. As noted above, the responsibility to 'society' or to the collective are fundamental to the

Chinese philosophical tradition. It is not clear what legal recourse Chinese citizens have to assert

their constitutional rights, since Chinese courts cannot apply constitutional law directly, nor can

they adjudicate on the consistency of other statutes with the constitution.

There are a number of international treaties

between UN members on human rights, which, once

ratified or acceded to by a state, are considered binding, with compliance monitored by a special

UN committee established for that purpose.

China is a signatory to the UN Universal Declaration of

Human Rights (UDHR), and to several important international human rights treaties, including the

China's compliance with selected fields of international law

International Covenant on Civil and Political Rights (CCPR), the International Covenant on Economic,

Social and Cultural Rights (CESCR), and the Convention against Torture and Other Cruel Inhuman or

Degrading Treatment or Punishment (CAT). However, while it has ratified the CESCR and the CAT,

China has chosen not to ratify the CCPR since signing it in 1998, despite calls by international human

rights groups to do so.

The decision to ratify the CESCR but not the CCPR may signify a cultural and

political preference for economic and social rights over individual ones.

China has adopted a 'wary'

, tactical approach to human rights commitments, partly because of a

perceived incompatibility between its own cultural and political traditions and those of the West. At

the same time, it is motivated by a desire to burnish its international reputation, deflect criticism and

encourage international economic integration, albeit on its own terms. China (like Russia and the

United States) is not a party to the Rome Statute establishing the International Criminal Court (ICC),

and it has made extensive use of reservations when ratifying international human rights treaties,

specifically precluding international arbitration in the International Court of Justice or elsewhere:

this is true, for example, of China's reservations on Article IX of the Convention on the Prevention

and Punishment of the Crime of Genocide (

CPPCG), on Article 22 of the International Convention on

the Elimination of All Forms of Racial Discrimination (CERD), on Article 29(1) of the Convention on

the Elimination of All Forms of Discrimination against Women (CEDAW), and on Article 30(1) of the

CAT, all of which concern international arbitration. China also made a reservation declaring that it

does not recognise the competence of the Committee against Torture as provided for in Article 20

of the CAT, and with regard to Article 8.1 of the CESCR, limiting the labour rights therein in line with

its domestic labour laws.

Table 1 – Selected UN human rights treaties to which China is a State party

Data sources: Office of the UN High Commissioner for Human Rights; UN Treaty Collection.

Similarly, China has ratified only four of the eight core international labour conventions of the

International Labour Organization (ILO): the Equal Remuneration Convention, the Discrimination

(Employment and Occupation) Convention, the Minimum Age Convention, and the Worst Forms of

Child Labour Convention, arguably because they are compatible with its own socialist legal

tradition – yet there are questions about China's enforcement of even these conventions. China has

not ratified the Forced Labour Convention, the Freedom of Association and Protection of the Right

UN treaty

Date of

signature

Date of

ratification

or accession

Reservation?

Convention against Torture and Other Cruel Inhuman

or Degrading Treatment or Punishment (CAT)

12 Dec 1986

04 Oct 1988

Yes: Articles 20;

30(1)

International Covenant on Civil and Political Rights

(CCPR)

5 Oct 1998

Convention on the Elimination of All Forms of

Discrimination against Women (CEDAW)

17 Jul 1980

4 Nov 1980

Yes: Article 29(1)

International Convention on the Elimination of All

Forms of Racial Discrimination (CERD)

29 Dec 1981

(accession)

Yes: Article 22

International Covenant on Economic, Social and

Cultural Rights (CESCR)

27 Oct 1997

27 Mar 2001

Yes: Article 8.1

Convention on the Prevention and Punishment of the

Crime of Genocide (CPPCG)

20 Jul 1949

18 Apr 1983

Yes: Article IX

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to Organise Convention, the Right to Organise and Collective Bargaining Convention, or the

Abolition of Forced Labour Convention.

As a result of these reservations and the country's selective approach to international commitments,

other governments appear

to have limited legal recourse to hold China to its international

obligations, other than periodic reviews by treaty bodies and public and peer government pressure.

The Office of the UN High Commissioner for Human Rights has issued numerous statements of

concern about the human rights situation in different parts of China, but cannot force China to

cooperate with its investigations. China has also become more adept at building coalitions of

countries in the UN Human Rights Council to head off criticism of its policies.

China's approach to international disarmament and arms

control agreements

Arms control and non-proliferation

On 6 July 2020, China acceded to the 2013 Arms Trade Treaty (ATT), designed to control cross-border

conventional arms transfers and prevent weapons from being used to commit human rights abuses,

fuel conflict, or commit crimes. Signed by the Obama administration in the US, the treaty was never

ratified by Congress, and the Trump administration expressly distanced the US from it. Initially China

was reluctant to join the treaty, and focused instead on limiting its scope. It appeared to object to

the principle of regulating how client governments use the arms they purchase, in line with its

advocacy of the principle of non-interference, particularly with regard to human rights issues.

However, with the arrival of the Trump administration, China

appeared to view accession to the

treaty as an opportunity to polish its multilateral credentials. Moreover, as China has grown to

become an increasingly important security actor in Africa, not just as an arms exporter, but also in

the form of Chinese citizens (including UN peacekeepers) and assets located there, the country has

a growing interest in using arms exports to protect its people and investments there.

China is the world's fifth largest arms exporter after the US, Russia, France and Germany,

predominantly to clients in Asia and Africa; although a lack of transparency in its data frustrates

detailed analysis. Moreover, as China only acceded to the ATT relatively recently, it is too early to

assess whether it is complying with the treaty.

China ratified the Convention on the Physical Protection of Nuclear Material (CPPNM) in 1989, while

declaring that it would not be bound by Article 17(2) of the convention, regarding dispute

settlement procedures. China ratified the Treaty on the Non-Proliferation of Nuclear Weapons (NPT)

in 1992. Like the United States, China has signed (in 1996), but not ratified, the Comprehensive

Nuclear Test Ban Treaty (CTBT). China also ratified, in 1984, the Biological Weapons Convention

(BWC), as well as, in 1997, the Convention on the Prohibition of the Development, Production,

Stockpiling and Use of Chemical Weapons and on their Destruction (CWC). In November 2000, China

made a non-binding, non-treaty political commitment to the US to adhere to the principles of the

voluntary Missile Technology Control Regime (MTCR). The US asserts that China has failed to respect

that commitment. China is not a member of the Wassenaar Arrangement on Export Controls for

Conventional Arms and Dual-Use Goods and Technologies, but it has 'largely aligned' its policies

with Wassenaar. In October 2020, China adopted an Export Control Law, one of whose statutory

objectives is to strengthen China's compliance with its international non-proliferation obligations.

China conducted its first nuclear test in 1964, and since then has built up a modest nuclear weapons

arsenal (in comparison to the US and Russia) with the aim of maintaining a minimal deterrent against

foreign nuclear powers, and subject to the principle of 'no first use' that the Chinese government

first declared in 1964. It is in the process of modernising its nuclear capability, having, by 2021, built

an estimated 350 warheads. The Trump administration sought to engage China in negotiations to

renew the 2010 New Strategic Arms Reduction Treaty (New START) nuclear arms control agreement

with Russia, but China

rejected the invitation, arguing that both the US and Russia should drastically

China's compliance with selected fields of international law

reduce their own nuclear stockpiles (estimated in 2021 at 5 550 and 6 225, respectively) before

asking China to do the same. In July 2021, it was reported that China appeared to be expanding its

arsenal of intercontinental ballistic missiles (ICBMs), though it is not clear that this amounts to a

breach of any of China's treaty obligations. China has also declined to join the Intermediate-Range

Nuclear Forces Treaty (INF Treaty),

apparently because this would limit its military options with

respect to Taiwan and other intermediate-range targets in East Asia.

UN sanctions on North Korea

Since October 2006, North Korea has conducted six nuclear tests, most recently in September 2017,

when it tested what it claimed was its first thermonuclear weapon, triggering an earthquake

measuring 6.3 on the Richter scale. The tests defy a series of nine major sanctions resolutions

adopted by the UN Security Council (UNSC) since 2006, designed to pressure the country into

abandoning its nuclear weapons programme and re-joining the NPT. The last UNSC decision to

strengthen sanctions on North Korea was adopted in December 2017, in response to the most

recent test. In line with its policy of non-interference regarding issues not central to its own national

security, China has

sought to prevent UN attempts to censure North Korea over human rights

abuses. However, since October 2006, it has joined other UNSC members in voting to impose

sanctions on North Korea over its nuclear weapons programme, most recently with UNSC resolution

S/RES/2397 in December 2017, while insisting on targeting sanctions in a way that does not threaten

the economic viability of an allied regime. China's approach to the sanctions is also informed by its

'no war, no instability and no nuclear weapons' policy for the Korean Peninsula, which has

sometimes necessitated trade-offs between these three objectives.

It is not clear to what extent China has faithfully and energetically implemented the sanctions

regimes that it has itself endorsed. In December 2020, the Trump administration in the US accused

China of 'flagrant' violations. China-inserted loopholes in the regime that were designed to frustrate

nuclear weapons development specifically, while avoiding weakening the North Korean regime,

may be difficult to implement in practice (owing, for example, to the impossibility of tracking how

the North Korean government spends revenue from exports in targeted and non-targeted sectors).

In April 2020, a UN report on the sanctions concluded that North Korea had succeeded in increasing

trade in coal and oil products, with the collusion of China's shipping industry. In addition, patchy

data, China's decentralised administration, and corruption among border officials, may all

undermine China's enforcement of the sanctions, without this being a deliberate policy of the

central government in Beijing. Nevertheless, uncertainty about whether the Chinese government

intends to undermine its own sanctions, or whether instead it is institutionally and administratively

incapable of enforcing them effectively, may itself be worth considering when assessing China's

compliance with other international agreements.

China's approach to international climate agreements

China's ecological challenges and ambitions first gained world-wide attention in 2008. In the run-

up to the 2008 summer Olympic Games, global media were full of reports about air pollution in

Beijing. Only a few months later, in November 2008, the country announced a major stimulus

programme to fight the effects of the global financial crisis, with considerable fiscal means

dedicated to the promotion of renewable energies, particularly solar panels. Although China

became the largest emitter of CO

in absolute terms as early as 2005, with its per capita emissions

surpassing those of the EU (but still behind the US) in 2013, the country maintained its traditional

line that as a developing country it had contributed little to global warming, and therefore refused

to make major international commitments on climate policies.

This, however, appeared to change in September 2016, when the US and China jointly announced

their ratification of the Paris Agreement ahead of the G20 summit in Hangzhou, China. Under that

agreement, parties are legally obliged to set more ambitious targets periodically, but there is no

legal obligation to meet those targets. Furthermore, the compliance mechanism as provided by

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Article 15 has been described as 'largely toothless', though others point out that the agreement is

meant to function on the basis of 'peer pressure' and the conviction that worsening climate

conditions will convince public opinion and governments that decisive action is necessary.

The table below summarises the pledges made by China in its first submission of its National

Determined Contribution (NDC) as of 3 September 2016:

The 2020 target on carbon intensity was achieved

in late 2017, and in 2019 the share of non-fossil

sources in the total energy supply reached 15.3 %, one year ahead of the 2020 target. In December

2020, China announced more ambitious targets, which have yet to be submitted officially in the

form of an updated NDC. However, the new, 14th, five-year plan indicates that Chinese leaders

consider ecological challenges to be paramount: while in contrast to previous plans, the 14th plan

does not directly set annual targets for economic growth rates up to the end of the plan's horizon

(2025), one analysis suggests that more than half the plan's binding targets relate to environmental

objectives. As the criteria for the evaluation of officials now focus more on sustainability, there is a

strong incentive for all levels of government to reach the new plan's targets.

Compared to the early 2000s, China's approach to international climate diplomacy has changed

considerably, and China has complied with the requirements of the Paris Agreement (although the

formal submission of the – already announced – new 2020 targets is overdue). The main global

criticism regards in particular the still considerable importance of fossil fuels in China's energy plans

and the support given to coal plants via its external infrastructure and connectivity initiative, the

Belt and Road Initiative (BRI). China's policies on climate change are to a considerable degree driven

by domestic concerns, but international partnerships and peer pressure also play an important role.

It remains to be seen how the rapidly evolving international context will influence China's fight

against climate change.

China's bilateral territorial disputes and international law

China versus the Philippines in the South China Sea

China has made disputed claims, in terms of both territory and maritime rights, to large swathes of

the South China Sea: the site of hundreds of islands, banks and other maritime features; a major

trade and energy supply route and one of the world's busiest sea lines of communication (SLOCs); a

Source: China update, Climate Action Tracker, 21 September 2020.

China's compliance with selected fields of international law

source of rich but depleting fishing stocks and significant proven and estimated oil and gas deposits;

an area with deep water useful for the development of Chinese naval power; and an increasingly

militarised space in the context of growing Sino-US strategic rivalry. Uncertainty about rights in the

region is in part a legacy of World War II, and the loss of, and competing claims to, former Japanese

territory there.

China's claims in the South China Sea, which it says

derive from historic precedent first asserted by

the RoC, take the form of a 'nine dash line' that runs close to the borders of all the other

neighbouring states, and sweeps up the majority of the sea, including its most important maritime

features: the Pratas Islands (occupied by Taiwan, but claimed by China) in the north-east; the Paracel

Islands (occupied by China, but claimed by Vietnam and Taiwan) to the west; the Macclesfield Bank

(unoccupied, but claimed by China and Taiwan) as well as the Scarborough Shoal (unoccupied, but

claimed by China, Taiwan and the Philippines) in the centre; and the Spratly Islands in the sea's

south. The case of the Spratly Islands is the most complex: they are occupied in part by China,

Malaysia, the Philippines, Taiwan, and Vietnam, but claimed in their entirety by China, Taiwan and

Vietnam, and in part by Brunei, Malaysia, and the Philippines. China's claims are the most extensive

of all the sea's bordering states, and contested in the form of multiple overlapping claims by the

other states. China, Vietnam and the Philippines have also reclaimed land and

built military facilities

of varying degrees of sophistication on some of the occupied islands and reefs.

In 1996, China ratified the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which

sets out criteria and an arbitration mechanism for resolving conflicting maritime rights claims, but

not territorial disputes specifically. China's rival claimants in the region have also ratified UNCLOS.

UNCLOS introduced new rules for determining the economic rights linked to specific maritime

features, which China incorporated into its 1992

Law on the Territorial Sea and the Contiguous Zone

as well as its 1998 Law on the Exclusive Economic Zone, while continuing to maintain its more

extensive 'nine dash line' claims. While China did not expressly rule out international arbitration

when ratifying UNCLOS, in practice it has resisted attempts to have its conflicting claims in the South

China Sea adjudicated by international tribunals. This contrasts with the approach taken by Malaysia

and Indonesia, and Malaysia and Singapore, which brought UNCLOS cases before the International

Court of Justice in 2002 and 2008 respectively, ultimately complying with the ICJ rulings.

In 2002, China, together with the Association of Southeast Asian Nations (ASEAN), signed the

Declaration

on the Conduct of Parties in the South China Sea, thereby committing to the peaceful

resolution of disputes through negotiation. However, China (along with other signatories) has since

violated this commitment, for example by forcibly expelling the Philippines from the Scarborough

Shoal. In January 2013, the Philippines became the first South China Sea state to initiate arbitral

proceedings against China, at the Permanent Court of Arbitration (PCA) in The Hague, under

UNCLOS Annex VII. China dismissed the Philippines' case, and refused to participate in the

proceedings, instead issuing a position paper arguing that the PCA tribunal set up to hear the case

lacked jurisdiction. The PCA ruled against China, determining, inter alia, that there was no legal basis

under UNCLOS for China's 'nine dash line' claims, and that China had encroached on the Philippines'

rights. Several other countries, including the United States (which has not itself ratified UNCLOS)

and Japan, have called on China to comply with the ruling, but China continues to reject its validity

and force, and to advance its maritime and territorial claims in the South China Sea.

Maritime and territorial disputes in the East China Sea

In addition to its maritime and territorial disputes with south-east Asian neighbours in the South

China Sea, China also contests rights in the East China Sea, vis-à-vis Japan, which in turn also disputes

such rights with South Korea. There, too, the three parties' UNCLOS-derived maritime claims to

exclusive economic zones (EEZ) partly overlap.

The disputed areas are: Dokdo/Takeshima which is

administered by South Korea and claimed by Japan; and Senkaku/Diaoyu, which are administered

by Japan and claimed by China and Taiwan. As is the case in the South China Sea, the post-WWII

settlement of Japan's territorial losses complicates the resolution of the competing claims. Japan

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nationalised the Senkaku/Diaoyu islands in 2012 in the face of Chinese protests, and has made EEZ

claims which it says are based on UNCLOS. China also bases its claims on UNCLOS, and has

responded to Japanese policy by declaring an air defence identification zone encompassing the

disputed area, and patrolling the area with law-enforcement vessels. While all three parties purport

to base their territorial claims on UNCLOS principles, neither bilateral dispute has been officially

referred to international arbitration.

Hong Kong and the Sino-British Declaration

On 19 December 1984, the PRC and the United Kingdom (UK) signed the Sino-British Joint

Declaration on the Question of Hong Kong, an international agreement registered at the United

Nations. The declaration provided for the transfer from the UK to the PRC of sovereignty over the

British colony of Hong Kong on 1 July 1997, but also stipulates that the PRC will grant Hong Kong a

'high degree of autonomy' and leave its social and economic systems and lifestyle unchanged for a

period of at least 50 years, i.e. until the year 2047. Article 3(3) of the declaration guarantees that 'the

Hong Kong Special Administrative Region [HKSAR] will be vested with executive, legislative and

independent judicial power, including that of final adjudication. The laws currently in force in Hong

Kong will remain basically unchanged'. Article 3(5) provides that 'rights and freedoms, including

those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of

correspondence, of strike, of choice of occupation, of academic research and of religious belief will

be ensured by law in the [HKSAR]'. Article 3(12) states that 'the above-stated basic policies ... will be

stipulated, in a Basic Law of the [HKSAR] ..., and they will remain unchanged for 50 years'.

The declaration's provisions are informed by the principle of 'one country, two systems' formulated

by China's then-leader Deng Xiaoping, according to which the newly constituted HKSAR would

essentially be a self-governing part of China, on the basis of its own 'mini-constitution', the Basic

Law, to which the declaration was annexed. PRC sovereignty, legislation and decision-making with

regard to the HKSAR would be limited to foreign and defence affairs.

The colonial political system in Hong Kong bequeathed by the UK in 1997 had recently been

democratised, with the first direct elections to the Legislative Council ('LegCo'), the city's parliament,

taking place in 1991, complementing an independent judiciary applying the common law system

and guaranteeing a range of democratic freedoms enjoyed in the UK, but not in mainland China.

Nevertheless, there were limits to Hong Kong's pre-handover democracy: a UK-appointed governor

remained the president of Hong Kong's Executive Council, and thus its head of government, up to

handover in 1997. Under the Basic Law that governs the post-handover HKSAR, the same

democratic freedoms are guaranteed (

Article 27), and laws must be adopted by the democratically

elected LegCo. At the same time, the Executive Council is now headed by a chief executive chosen

by a group of election colleges representing a small minority of the HKSAR electorate; and formally

appointed by the PRC government in Beijing. Article 45 of the Basic Law states that 'the ultimate aim

is the selection of the Chief Executive by universal suffrage upon nomination by a broadly

representative nominating committee in accordance with democratic procedures'. Democratic

activists in Hong Kong see this article, as well Article 26 of the Basic Law, which guarantees HKSAR

permanent residents 'the right to vote and the right to stand for election in accordance with law', as

a de facto guarantee against interference by Beijing in the selection of candidates for the office

either of LegCo member or of chief executive.

In its six-monthly report on Hong Kong for the period July to December 2020, the British

government identified 'three clear breaches' of the 1984 declaration, and declared China to be in a

'state of ongoing non-compliance' with the declaration. The first, declared on 1 July 2020, followed

the imposition of a new National Security Law on Hong Kong, bypassing the LegCo, and said to

violate Hong Kong's 'high degree of autonomy and independent judicial authority' as provided for

in the declaration. The UK declared a further breach on 12 November 2020 following the

introduction of new rules for disqualifying elected legislators, and a

third in March 2021, in response

to further moves by China to limit the criteria for LegCo candidates to 'patriots'. The only prior

China's compliance with selected fields of international law

instance in which the UK declared a breach of the declaration was in February 2016, following the

alleged abduction by the Chinese authorities of Lee Po, a bookseller and British national, from Hong

Kong to the Chinese mainland.

China maintains that under 'one country, two systems', it is responsible for Hong Kong's foreign and

defence policy, and that the National Security Law is a means of guarding against foreign subversion

in the absence of LegCo legislation in this area. China has dismissed the UK's accusations as an

unwarranted attempt to interfere in its internal affairs, on the basis of a historical agreement with

no practical bearing on the political situation in Hong Kong today (though others in the Chinese

government have re-affirmed China's commitment to the declaration, and to the principle of 'one

country, two systems'). Some observers contend that China's attitude to the declaration is partly

informed by sensitivities regarding the historical context in which Hong Kong was ceded to Great

Britain in the first place, under the 1842 Treaty of Nanking: the concession followed the First Opium

War, in which the British navy defeated Chinese government attempts to regulate the trade of

opium on Chinese territory. This paved the way for a 'century of humiliation' (the historical

understanding of which is said to be a 'cardinal principle of the Chinese Communist faith') in which

outside powers used both armed force and punitive treaties to dictate terms to China, and is

viewed

by China as a demonstration of Western powers' willingness to couch the naked pursuit of their own

interests in the language of international norms and principles.

It is not clear what options the UK has to enforce the provisions of the 1984 declaration, having

declared China to be non-compliant. While the declaration states that it is equally binding on both

parties, it contains no enforcement or dispute provisions.

The Vienna Convention on the Law of

Treaties, to which both the UK and China are parties, provides

for the suspension of the operation

of a treaty in the event that it is breached, but it is not obvious that this would help Britain enforce

the terms of the 1984 declaration. Some observers conclude that in the absence of clear legal

remedies, the issue has become one of 'discourse power' within the UN system, with a larger number

of states (not including any EU Member States) backing China's view of Hong Kong as an internal

matter. The UK has taken some steps in response to the alleged breaches of the declaration: it has

provided for a new immigration route for British Nationals (Overseas) passport holders in Hong

Kong, offering refuge for millions of Hongkongers. The UK has also suspended indefinitely its

extradition treaty with Hong Kong, extended an arms embargo on mainland China dating from the

1989 Tiananmen Square massacre, to cover Hong Kong; and has issued joint statements on Hong

Kong with international partners via the UN Human Rights Council and the Group of Seven (G7). On

18 June 2020, the European Parliament adopted a

resolution calling on the EU and Member States

to file a case against China in the ICJ for breach, through its National Security Law, of both the Sino-

British declaration and the ICCPR. Parliament reiterated this call in a separate resolution adopted on

8 July 2021.

MAIN REFERENCES

Brooke-Holland L. Hong Kong: the Joint Declaration, House of Commons Library, 5 July 2019.

Chan P., 'China's Approaches to International Law since the Opium War',

Leiden Journal of International

Law

, 6 November 2014.

Die Volksrepublik China und der internationale Menschenrechtsschutz, Wissenschaftlicher Dienst des

Deutschen Bundestages, 10 June 2020 (author(s) not published).

Grieger G., China tightens its grip over the South China Sea, EPRS, February 2021.

Grieger G., China's WTO accession: 15 years on: Taking, shaking or shaping WTO rules?, EPRS,

December 2016.

Grieger G., New sanctions against North Korea: The challenges of implementation and China, EPRS,

July 2016.

EPRS | European Parliamentary Research Service

House of Commons Foreign Affairs Committee, China and the rules-based International System,

Sixteenth Report of Session 2017-19.

Rühlig T., How China approaches International Law: Implications for Europe, European Institute for Asian

Studies, May 2018.

Williams R., International law with Chinese characteristics: Beijing and the 'rules-based' global order,

Brookings Institution, October 2020.

ENDNOTES

Y. Li and C. Bian, 'China's Stance on Investor-State Dispute Settlement: Evolution, Challenges, and Reform Options',

Netherlands International Law Review

, 2020.

The stance of the Chinese government, as articulated by the government-controlled English-language publication

Global Times

, is that Australia was the first to breach the terms of ChAFTA by discriminating against Chinese investors

on security grounds. See J. Xie and J. Chi, '

It's Australia, not China that's violating free trade deal, analysts say, urging

China to resort to international courts',

Global Times

, 17 December 2020.

For a discussion of China's approach to international human rights, see Die Volksrepublik China und der internationale

Menschenrechtsschutz, Wissenschaftlicher Dienst des Deutschen Bundestages (research service of the German

Bundestag), 10 June 2020 (author(s) not published); on the Chinese Communist Party's relatively recent embrace of

Confucian principles to strengthen its political legitimacy, see R. McGregor,

The Party: The Secret World of China's

Communist Rulers

, Allen Lane, 2010, pp. 32-33.

See P. Chan, 'China's Approaches to International Law since the Opium War',

Leiden Journal of International Law

, Vol. 6

November 2014.

S. Guo, 'Implementation of Human Rights Treaties by Chinese Courts: Problems and Prospects',

Chinese Journal of

International Law

, Vol. 8(1), 2009, p. 161.

For an explanation of the procedure for consenting to, signing and ratifying international agreements, see the United

Nations Treaty Handbook, 2012 edition.

Ratification would require approval by China's National People's Congress. See V. Yu, 'Petition urges NPC to ratify

human rights treaty in China',

South China Morning Post

, 28 February 2013.

S. Sceats and S. Breslin, China and the International Human Rights System, Chatham House, October 2012..

See above: 'Die Volksrepublik China und der internationale Menschenrechtsschutz', Wissenschaftlicher Dienst des

Deutschen Bundestages.

For an explanation of the difference between maritime and territorial disputes, see B. Strating, Maritime and

Sovereignty Disputes in the East China Sea, National Bureau of Asian Research, 9 February 2021.

See P.C. Chan, above. For a discussion of the political context in which the UK and China negotiated the 1984 declaration,

see G. Gordon, When 'One Country, Two Systems' meets 'One Person, One Vote': the Law of Treaties and the Handover

Narrative through the Crucible of Hong Kong's Election Crisis',

Melbourne Journal of International Law

, 2015.

For a review of possible options under international law for enforcing the terms of the 1984 Sino-British declaration,

see S. Shen, 'The Sino-British Joint Declaration and International Law: Is there a role for international courts in upholding

the Sino-British Joint Declaration on Hong Kong?',

The Diplomat

, 9 September 2020.

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