China and the International Criminal Court
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Embargo end date20//2/26/1
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This thesis focuses on the relationship between China and the International Criminal Court (hereinafter ‘ICC’ or ‘the Court’). China has long been supporting the establishment of a permanent international criminal court. It actively participated in every stage of the negotiating process leading up to the adoption of the Rome Statue but chose to cast a negative vote at the end of the Rome Conference in 1998. There were several reasons stated by the Chinese delegation at that time for not joining the ICC, which were all framed in legal terms. However, there have been significant developments both in the Rome Statute itself and in practice since these Chinese objections were first articulated. The ICC has now functioned as an international adjudicative body for more than ten years. Some of the issues of concern to China have been, in one way or another, addressed through the jurisprudence of the ICC during its existence, and also through the practice of the Security Council in relation to the ICC. More significantly, all the amendments adopted at the Kampala Review Conference in 2010, in particular the crime of aggression amendment, directly or indirectly addressed China’s pre-existing concerns towards the Rome Statute. In addition, some of the Chinese reservations over the core crimes under the ICC’s jurisdiction relate to fields of customary law that have undergone rapid developments in the past two decades. This thesis takes China’s concerns both individually and as a whole to examine them from the legal perspective in light of all the above-mentioned developments. It argues that those specific objections are not as robust as they first appeared in the 1990s, and should no longer be regarded as a significant impediment to China’s accession to the Rome Statute. The ICC is part of a broader landscape of international courts and tribunals. This thesis therefore also examines the substance of the specific concerns of China towards the ICC in light of China’s engagement with international judicial bodies, and some of the traditional concerns that have had an impact on that engagement. Traditionally the Chinese government shunned participation in international adjudication, adhering to diplomatic negotiations for the settlement of whatever disputes it was embroiled in. However, since the 1990s, during and even after the ICC negotiations, there has been an increasingly greater Chinese engagement with international judicial or quasi-judicial bodies, with the exception of the UN human rights treaty bodies. The work undertaken in this thesis investigates the ways in which China has characterised the ICC as a human rights court of the traditional kind. This thesis argues that the ICC is distinct from UN human rights treaty bodies, and that China’s progressively wider engagement with international judicial bodies should not be hindered by a miscalculation of putting the ICC in a ‘human rights box’. This thesis concludes that the significant developments in both the specific ICC context and in the wider context (of China’s engagement with international judicial bodies) point to a need for the Chinese authorities to reassess and reconsider its position towards the ICC. Were the Chinese authorities to make a re-evaluation and decide to move towards full participation in the ICC, it would reinforce certain values of importance to China.