International Tribunal for the Law of the Sea Advisory Case on Climate Change: China's position and views
——Ma Xinmin’s Keynote address at the 2024 Colloquium on International Law hosted by the Asian Academy of International Law
It is my great honor to join you at the 2024 Colloquium on International Law to contribute my insights on the review and prospects of Asia's invaluable contributions to the Five Principles of Peaceful Coexistence.
Seventy years ago, China, India, and Myanmar proposed the Five Principles of Peaceful Coexistence, which have since become the common position of developing countries and the universally recognized fundamental principles of international law.
Seventy years later, China introduced the concept of building a community with a shared future for humankind. This concept is both a continuation and development of the Five Principles and is emerging as a new paradigm of international law for developing countries. I am confident that the concept of building a community with a shared future for humankind will undoubtedly elevate international law to a new stage—a "community international law" oriented towards the common interest of all humankind.
Today, I would like to share with you a recent development in the rules governing the global commons that is closely related to "community international law"—the Advisory Opinion of the International Tribunal for the Law of the Sea (hereafter referred to as ITLOS) on Climate Change.
I am pleased to take this opportunity to introduce China's position on the case and to compare notes with you on several key issues.
On May 21, the International Tribunal for the Law of the Sea (ITLOS) issued an advisory opinion in response to a request submitted by the Commission of Small Island States on Climate Change and International Law (COSIS). This marks the first instance of a global judicial body addressing a case related to climate change. The case involves the interpretation and application of rules concerning climate change and marine environmental protection, as well as their interrelationship, and is expected to influence global governance and order significantly. The international community has paid close attention, with 34 States Parties and nine international organizations submitting written statements to the Tribunal, and 33 States Parties and three international organizations participating in oral proceedings.
As the world's second-largest economy and a major developing country, China has played a significant role in this landmark international judicial practice. In June of last year, the Chinese government submitted a written statement to the Tribunal. In September of the same year, I delivered an oral statement before the Tribunal on behalf of China. This marked the first time that China participated in the oral proceedings of the Tribunal, representing another significant international judicial practice for China following its participation in the oral proceedings of the ICJ’s Advisory Opinion on Kosovo.
Our written and oral statements focused on three main aspects. First,
they elucidated how China, under the strong guidance of Xi Jinping Thought on Ecological Civilization, fulfills its obligations under the United Nations Framework Convention on Climate Change (UNFCCC). Additionally, they outlined China’s policies, laws, measures, and achievements in addressing climate change.
Second,
they reiterated China's longstanding position of opposing the advisory jurisdiction of the full Tribunal, while also presenting new rationales for this stance.
Third,
in terms of the merits, the statements highlighted that the UNFCCC system is sui generis and is fundamental and primary in addressing climate change, whereas the United Nations Convention on the Law of the Sea (UNCLOS) can only play a supplementary role in this context. They articulated the view that the impact of greenhouse gas emissions on the ocean is sui generis and cannot be characterized as marine environmental pollution. In addition, they argued that the loss and damage caused by climate change are sui generis and cannot be addressed under the state responsibility regime provided by UNCLOS.
In addition,
China unequivocally reiterated that the so-called “South China Sea Arbitration Award” is illegal, null, and void, and should not be invoked as a legal basis.
China has played an indispensable role in helping the court understand the contentions of all parties in an objective, balanced, and rational manner. The Registry of the Tribunal expressed appreciation for China’s strong support for its work. Several countries referenced China’s views in their oral statements, and many delegations, along with some of the most highly qualified publicists and lawyers, congratulated China for its insightful contributions. Furthermore, China emphasized that the UNFCCC system is fundamental and of cardinal importance in addressing climate change. It advocated for the international community to uphold the principles of common but differentiated responsibilities, equity, and sustainable development. These points were reflected in the advisory opinions of the Tribunal and were also cited by judges in their declarations. This undoubtedly demonstrates that the development of "community international law" benefits from China’s voice and proposals.
Distinguished Guests and Friends,
Now, I would like to share my views on the three key issues of the Advisory Opinion with you.
The first issue is whether the full Tribunal has advisory jurisdiction, which is also the first significant issue addressed by the Tribunal in this case.
In 2015, the Tribunal established its advisory jurisdiction for the full Tribunal under the Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC), rejecting the opposing views of 10 States. In the present case, several countries, including China, Brazil, and India, continue to uphold their strong opposition to the claim that the full Tribunal has advisory jurisdiction. In particular, in addition to its previous objections, China introduced numerous new arguments, including, inter alia: first, the term "matters" under Article 21 of the Statute of the International Tribunal for the Law of the Sea refers to the objects of the jurisdiction ratione materiae, rather than competence or the like, and cannot be interpreted as “including advisory opinions.” Second, the meetings of States Parties to the UNCLOS have not "ratified" or implicitly agreed to the Rules of the International Tribunal for the Law of the Sea; the States Parties have not reached a subsequent agreement conferring advisory competence on the full Tribunal. Third, The BBNJ agreement provides only that its Conference of the Parties may submit requests for advisory opinion to the Tribunal on specific legal questions. However, the Tribunal continued to hold that Article 21 of the Statute and the COSIS Agreement conferring competence on the Tribunal constitute the substantive legal basis for the advisory jurisdiction of the full Tribunal in this case. Nevertheless, the Tribunal’s decision lacks ingenuity, fails to address the aforementioned objections, and is not persuasive.
