International law / 国际法

Brief

International law is the body of rules and principles regulating the relations between states and other international actors. Based on treaties and customary law, it is an evolving concept that can be traced back some four hundred years. Fundamentally, international law requires respect for the sovereign equality of states, which means that states generally have the discretion to accept or reject proposed new international law. Since the adoption of the UN charter in 1945, international law has expanded to prohibit the use of force against another state and to encompass human rights, humanitarian law, and accountability for international crimes such as genocide and crimes against humanity, as well as to address emerging concerns like space law, internet regulation, and environmental law.

In China’s understanding, the core principles of international law are state sovereignty, non-aggression, and non-interference. China views the liberal, post-World War II model of international law that has been dominant since the 1990s as a tool of Western hegemony and interventionism. Since 2015, China has put forward the concept of “a community with a shared future for mankind” (人类命运共同体) on the international stage, emphasising “common” rather than universal values. This is presented as a more inclusive, democratic, and fair model than the current international system.

Analysis

The PRC took its seat as “the only legitimate representative of China to the United Nations” in 1971. Before the reform and opening policy launched in 1978, China was largely an outsider to the international law system. With the end of the Cultural Revolution, China abandoned the ideological struggle against the capitalist West that had marked the Mao era, and instead became an active participant in key international organisations and frameworks. It ratified core treaties on trade and investment, as well as some human rights treaties. China’s approach to international law has been instrumental and selective, leveraging rules that are advantageous to its development and eschewing rules that could bring disadvantages. Prominent examples are China’s insistence on its status as a “developing country” in the World Trade Organization (WTO) and its unilateral claims regarding the South China Sea.

China does not seek to replace the established UN-centered international system, but to reshape those parts of international law that conflict with its national interests. Ever since Deng Xiaoping’s first speech at the UN in 1974, China has cultivated an image of a peaceful developing country and responsible great power with no hegemonic intentions, which it contrasts with Western imperialism and the West’s historically self-serving role in creating international rules. From its own perspective, China is the real guardian of international law. For example, the leadership argues that it was “not violating but upholding the authority and dignity of international law” by not recognising the 2016 international arbitration ruling on conflicting territorial claims between the PRC and the Philippines in the South China Sea. UN investigations of the human rights situation in Hong Kong and Xinjiang are routinely discarded as “interference in China’s internal affairs” and “smear campaigns” orchestrated by the West.

In the last decade under Xi Jinping’s leadership, China has evolved from rule-taker to aspiring rule-maker at the UN. Spurred by an increasing concern with security and stability in the face of uncertain global economic trends and democratic uprisings in other parts of the world, party-state discourse now clearly promotes a Chinese model of governance. This model combines commitment to economic globalization with the reaffirmation of a strong state not bound by liberal democratic checks. Xi’s vision of international order emphasises state sovereignty, non-interference and “win-win cooperation” theoretically based on “common values of peace, development, fairness, justice, democracy, and freedom”. In essence, China seeks to return to a pre-World War II understanding of international law where human rights are an internal matter of states.

As China’s economic and political clout grows, so does its ambition to expand the reach of its domestic laws and seek jurisdiction abroad. For example, the 2003 Shanghai Cooperation Organisation Convention on Countering Terrorism, Separatism and Extremism has been used to quell “security threats” in Xinjiang and Hong Kong and to extradite suspects and dissidents at China’s behest. In this light, Xi’s project to construct  “foreign related rule of law” (涉外法治) and a “legal system applicable outside the jurisdiction of our country” has important implications for the future of international law.[1]