This is the fifty seventh part in the series The China Chronicles.
Read all the articles here.
In the 1970s, China’s foreign policy made a marked departure from the isolationist stand adopted by her in 1949. Since then, she has steadily integrated into the international legal order by becoming a part of various international organisations, treaties and agreements. China’s emergence as a key player in global politics implies that her actions, statements and opinions carry the weight of framing and modifying both future and existing international legal norms. As countries aim to navigate a geopolitical future with decreasing US engagement and increasing Chinese influence, it becomes pertinent to know and understand China’s evolving approach to International Law.
Placing state sovereignty at the forefront
Simply defined, “International Law” refers to a body of rules derived from customs or treaties, which nations recognise as binding in their relations with one another. Treaty and custom-based rules, such as those related to peace, conflict, boundary disputes, trade and navigation; help create a stable, peaceful and mutually beneficial rules-based international order. However, under
realpolitik, countries instrumentalise international legal rules in pursuance of their own national and political interests. Back in 1945, the international community based on norms related to government recognition and state succession ostracised China. Under the leadership of Western countries, Chiang-Kai-Shek’s government-in-exile based in Taiwan was recognised as the official representative of China’s seat in the UN, and not Mao’s People’s Republic of China which was in
de facto control of Chinese territory. For these reasons, China has treated international law with caution and considered it as a tool for economic exploitation and political oppression.
Consequently, China’s general approach to international law has been drawn from principles enshrined in a 1954 bilateral treaty signed between India and China, known as the “Panchsheel Treaty”. The treaty, which aims to govern bilateral relations between the two states, consists of principles like respect for territorial integrity and sovereignty, non-interference in internal affairs and mutual non-aggression. The core tenets of the treaty heavily emphasise the concept of “state sovereignty”, i.e. a State’s full right and power to govern itself and control its affairs without any outside interference from any other state. These principles have been frequently invoked by China to oppose outside interference in issues such as the Tibetan independence movement, which impinge on her sovereignty and territorial integrity.
China has treated international law with caution and considered it as a tool for economic exploitation and political oppression.
Under International Law, treaties are the primary legal instruments for governing and regulating relations between states. Once a treaty is in force, its provisions are binding between parties and its objectives must be performed in good faith. However, China considers certain treaties, known as “unequal treaties”, as non-binding. “Unequal treaties”, a term coined by China, refer to a group of treaties through which she was coerced to concede certain territorial rights to Western powers. Given that the treaties were signed during the heyday of imperialism, China feels that the treaties violate her sovereignty and integrity since she negotiated them from an unequal position. This is a primary reason why China frequently contests the legitimacy of the MacMahon line, which demarcates the territorial boundary between India’s Arunachal Pradesh and South Tibet.
China does not follow international human rights obligations and avoids international scrutiny of its domestic human rights record. China’s wariness arises from the use of these norms to interfere in the domestic affairs of states through public censure, economic sanctions and, in several cases, armed intervention and regime change. Beijing demonstrates an extreme reluctance to endorse UN action in response to human rights violations or humanitarian crises A notable example includes the recent blocking of a UN Security Council Resolution on the humanitarian crisis in Syria in May 2014.
A different approach to emerging fields of International Law
China hosted the first World Internet Conference in 2014 and advocated “Internet Sovereignty” as a basis for cyber governance.
The above position is in contrast with China’s approach to newer and emerging fields of international law, such as space, trade, deep-sea mining, cyberspace and climate change. China’s change in approach can be attributed to the fact that the process for framing newer rules are more inclusive and participatory, as they contain significant representation from developing and least developed countries. China has an equal say in framing these rules and, given the size of her economy, population, military and territory her opinions and statements contain significant heft. Accordingly, China treats this as an ideal opportunity to promote her own vision for the global legal order. To cite an example, China hosted the first World Internet Conference (also known as the “Wuzhan Summit”) in 2014 and advocated “Internet Sovereignty” as a basis for cyber governance. Internet sovereignty, a mechanism that is already established in China, gives each country the right to govern and regulate its internet space as sovereign territory.
China has an equal say in framing these rules and, given the size of her economy, population, military and territory her opinions and statements contain significant heft.
As one of the largest economies in the world, China has continuously pushed for greater trade and economic integration through bilateral and multilateral free trade agreements, such as the Regional Comprehensive Economic Partnership (RCEP). Beijing has again, endeavoured to set up new multilateral financial institutions such as the Asian Infrastructure Investment Bank (AIIB) and the New Development Bank (NDB), as alternatives to the Western-dominated Bretton Woods system. However, even within the area of trade, economic and investment laws, states have flagged concerns regarding transparency from China’s end. China continues to adopt measures to promote her own sovereign rights in a covert manner, by utilising gaps and lacunae in existing international trade and economic laws. Developments in the past, such as the yuan devaluation, or the lax intellectual property rights regime in Chinese markets, aim to further her economic interests at the cost of similar interests of others.
China’s vision for the future of the international legal order
Previously, China’s experience with colonialism and imperialism made her a hesitant participant in the international legal order. Her response to pre-established, traditional international legal rules were guided by concerns of state sovereignty and non-interference in domestic affairs. However, with newer and emerging fields of international law, China is eager to participate in its formulation in order to help realise her vision for the global legal order and to create space for the protection of her own national and political interests. With an increasing decline in US engagement with the rules based international order, a vacuum has been created in global leadership. Given China’s emerging role as a global heavyweight, she could effectively fill this vacuum and utilise this position to modify existing international laws and shape new ones, in consonance with her own vision for the international legal order.
The implications of such a trajectory for International Law are many. For instance, on the one hand, it may help rollback “liberal interventionism” by Western powers, under the guise of human rights protection. But on the other hand, it may end international scrutiny of domestic human rights abuse and help perpetuate crises like those of the Rohingya refugees. Though imperfect, international law has helped create a world governed by rules and norms, and has made the global order more predictable and less chaotic. It remains to be seen whether the future trajectory of international law will indeed be shaped by China, given the dynamic nature of national and global politics, and the role played by emerging powers, like India.
The author is a research intern at ORF New Delhi.
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