Career: Legal Counsel | Emerson Electric Asia-Pacific | Hong Kong
A Testimonial from Liran Han:
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Chinese Judges on the International Court of Justice
Since its founding in 1945 the International Court of Justice (ICJ) has been the principal judicial organ of the United Nations (UN), and it has always included a Chinese judge. The Chinese judges on this court have a reputation for providing a conservative voice. Is this really the case, or are they just as much global citizens as judges from other countries? I will suggest that they are different, but in some unexpected ways.
The ICJ includes 15 judges selected by the UN General Assembly and the Security Council. Given the composition of the latter, it is not hard to understand why membership of the Court always includes countries represented on the Security Council, especially the five permanent members, including China. Over the course of its history the ICJ has had four Chinese judges. The first two came from the Republic of China (Taiwan) and since 1985 two others have been nominated by the People’s Republic of China.
To assess just how conservative these judges have been, I turn to the decisions they have made. In all, 69 cases have been decided when a Chinese judge was sitting in the chamber. Of these, on 50 occasions Chinese judges voted with the majority and issued no individual or joint separate opinion; on four occasions they voted against the majority and appended individual dissenting opinions; on another four occasions they voted against the majority and appended joint dissenting opinions; on two occasions they voted in favor of the judgments of the court and appended joint opinions or declarations with other judges; and on the remaining occasions they voted in favor of the judgments of the court and appended individual separate opinions or declarations to the judgment. Although other judges have spoken up more than the Chinese judges, the differences are not large.
By itself, the evidence I have outlined so far does not tell us that Chinese judges are particularly conservative. But further analysis indicates that judges nominated by the PRC have been much more reluctant than those from the ROC to be in the minority. For example, of the 50 cases in which Chinese (i.e., either ROC or PRC) judges voted in favor of a decision with no separate opinion, 39 involved PRC judges. And in cases in which PRC judges appended separate opinions or dissenting opinions, they often did so because they adhered to some very traditional doctrine.
For example, Judge Shi Jiuyong appended a dissenting opinion in the case of Georgia v. Russian Federation (2008), but it reflects a conservative view about the threshold for international intervention and the extent to which the sovereignty principle trumps other concerns.
By contrast ROC judges were more willing to express unconventional opinions. Wellington Koo from the ROC has been described in a 2008 article by V.D. Degan in Chinese Journal of International Law as having “Legally the most persuasive individual and separate opinions.” In general, conservatism characterizes the voting pattern of PRC, but not ROC, judges.
Where does this difference come from? It is hard to attribute it to difference in background. All of the judges were born before the Kuomintang regime, were educated at top law schools in China or the United States, and served in a high post in the Ministry of Foreign Affairs. They also share a very important part of Chinese culture, namely the Confucian doctrine of the “golden mean,” which prefers “compromise” to “extremes.” As for political background, mainland China has gone through a period when democracy and freedom have been notable by their absence, but so did Taiwan, where the KMT government imposed strict martial law from 1948 to 1987.
It’s time for China to represent itself as a rising, yet gentle major power. Hence China keeps emphasizing that it is interested in being only an economic superpower, not a political power. Above all else, what concerns China is keeping its society and diplomatic atmosphere in a harmonious state.
Perhaps the most useful way to account for the difference is the current political strategy of China, a country that has seen tremendous social and economic achievement over the past few decades and has returned to the center of the world after hundreds of years of being politically and economically oppressed. However, after this long troubled period, China is in pursuit of greatness, and among other things this has brought increased global attention, as well as criticism, often without factual basis, and a more complicated diplomatic atmosphere for the country. Indeed, some global powers are worried that China may take over the world, which partly explains the recent biased and false reporting about China in the Western media.
Given all this, it’s time for China to represent itself as a rising, yet gentle major power. Hence China keeps emphasizing that it is interested in being only an economic superpower, not a political power. Above all else, what concerns China is keeping its society and diplomatic atmosphere in a harmonious state. Of course, for some observers this is not so obvious. They are entitled to think that China’s expressed desires for harmony are only a cover for something else — just as I have the right to believe that’s the real goal of my country. In my view it is these forces, together with other characteristics of Chinese people, that have contributed to the formation of the so-called “quiet” and conservative Chinese judges in the ICJ.