Faculty Publications

The rise of China to global preeminence is one of the most
important events affecting international relations in the 21st century. As former top U.S. diplomat Robert Zoellick noted in 2005, “How we deal with China’s rising power is a central question in American Law. The centrality of this question has only become more obvious in the intervening two decades as China’s relative economic and military power has continued to grow.

The "rise of China" has already become cliche among international relations scholars and policy analysts. Yet few disagree that the People's Republic of China's economic, military, and political power has reached
new heights in recent years.' It is, therefore, surprising that relatively few international law scholars have studied whether and, if so how, the "rise of China" is affecting the development and growth of international law.
Take, for example, the application of the doctrine of sovereign immunity to foreign government officials-an area of substantial ferment and change. Numerous international authorities have suggested that, under
international law, government officials cannot invoke the protections of sovereign immunity for acts that violate jus cogens norms. The United States Court of Appeals for the Fourth Circuit recently relied on this
international law trend, holding that the "common law of sovereign
immunity" does not shield former government officials accused of acts
violating jus cogens from civil lawsuits. But although the Fourth Circuit
cited decisions from the United Kingdom and Italy to support its holding,
it did not cite China's views. This failure, while understandable, suggests
that the impact of China's perspective on this key question of international
law remains small.

This Essay uses the Fourth Circuit's holding as an opportunity to consider China's impact on the development of a complex and important doctrine of international law.

The United States remains the most important seafaring nation that is not a member of the United Nations Convention on the Law of the Sea (UNCLOS). Despite vigorous efforts by both the Bush and Obama Administrations, the U.S. Senate has continued to refuse to give consent to accession. Most of the objections to U.S. membership are based on policy
disagreements.

In addition to policy objections, opponents of ratification have also offered constitutional objections to joining UNCLOS. The first set of objections focuses on the authority created by UNCLOS to manage undersea resources outside of the jurisdiction of particular countries. Numerous opponents have also suggested that UNCLOS impermissibly authorizes an international organization to tax United States citizens or
companies. The second set of objections relate to the constitutionality of the treaty's complex system of binding dispute settlement.

China is on the cusp of its fourth decade as a party to the New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards.' At the time of China's accession in 1987, the highest levels of the
Chinese government supported entry and implementation of the New York Convention, which creates strict international standards requiring member states to enforce most private commercial arbitration awards.
In the intervening three decades, numerous studies have been conducted to assess whether Chinese courts enforce foreign arbitral awards consistent with the requirements of the New York Convention. Many of these studies, especially those published in the United States, have reported that there are serious problems with China's system of enforcing foreign arbitral awards.

According to these studies, the problems facing parties seeking to enforce foreign awards in China arise from weaknesses in China's overall judicial system. These studies cited weaknesses including uneven quality of Chinese judicial officials, the tendency of Chinese courts to protect local interests (especially local state-owned enterprises), and the general lack of transparency in many Chinese judicial proceedings related to arbitral enforcement.