by Julian Ku, Maurice A. Deane Distinguished Professor of Constitutional Law, Faculty Director of International Programs at Hofstra University. He also is a co-founder of the leading international law weblog Opinio Juris, where this article was published at first.
In observance of United Nations Day on October 24, China’s foreign minister Wang Yi issued a long statement expressing China’s view of itself as a “staunch defender and builder of international law” (Chinese version). As China-watchers know, China’s Communist Party has just completed its “Fourth Plenum” (sort of a Party leadership strategy meeting) on the theme of the promotion of the rule of law, so it is not surprising that China’s leadership would have something to say about the international rule of law as well.
The statement is pretty predictable (and largely unobjectionable) in its broad pledge for Chinese support to “international law” or the “international rule of law”. It is hardly pathbreaking. Still, as I have suggested, China’s government tends to have a slightly different view on what constitutes “international law” as compared to the United States or Europe. So while much of the statement is pretty anodyne (it is communist-party-speak, after all), there are a few points relating to China’s emphasis on sovereignty and its allergy to human rights that are worth noting.
1 – International Law and China’s History of National Humiliation
The statement places China’s commitment to international law in the context of its historical struggles facing foreign oppression in invasion beginning with the Opium War of the 1840s. This reference to China’s historical weakness in the nineteenth and twentieth centuries is standard nationalist fare in China, but it is interesting that it is linked here to modern international law. As the statement notes, “[s]eeing the contrast between China’s past and present, the Chinese people fully recognize how valuable sovereignty, independence and peace are.” I think this historical experience is a useful explanation for why there are deep roots to the version of international law presented here. For China, international law is closely linked to its achievement of independence from foreign powers, and there is no principle more dear to China in international law than “sovereignty” and independence from foreign domination. Those of us educated in the States have been taught that sovereignty is usually an obstacle to the promotion of international law (Louis Henkin even called it the “S” word), but that concept is still hard to sell in China.
2 – Sovereignty 5 : Human Rights 0
Indeed, the statement mentions “sovereignty” five times as a fundamental principle of international law, as referenced in the United Nations Charter. Thus, the statement cites certain universally recognized norms of international law and relations such “…as respect for sovereignty and territorial integrity, peaceful settlement of international disputes and non-interference in the internal affairs of others, as enshrined in the UN Charter, are the foundation stones upon which modern international law and conduct of international relations are built”.
This is right out of Article II of the UN Charter. But it is hard to imagine a statement by the United States about international law that did not also mention the UN Charter’s commitment to the protection of human rights. To be sure, human rights protection is not in Article II of the UN Charter’s list of “Principles” but it is odd (at least to an American) to see it ignored so completely here.
3 – Just Say No to Responsibility to Protect
The statement takes direct aim at those countries who are interventionist.
Hegemonism, power politics and all forms of “new interventionism” pose a direct challenge to basic principles of international law including respect for sovereignty and territorial integrity and non-interference in other countries’ internal affairs. Some countries follow a pragmatist or a double-standard approach to international law, using whatever that suits their interests and abandoning whatever that does not. — Wang Yi in “Full Text of Chinese FM’s Signed Article on International Rule of Law“, People’s Daily Online, 24.10.2014.
Hmm.. I wonder which country or countries it is referring to here? This position also reflects longstanding Chinese policy against any kind of military intervention (and most other kinds as well) no matter what the justification. So don’t count on a Chinese vote for that Syria intervention.
4 – Go Democracy (between, but not within, nations)!
The statement also endorses democracy … that is to say, democracy in international lawmaking. It accuses some countries (the One-Who-Must-Not-Be-Named) of trying to make “rules of certain countries as ‘international rules’, and their standards ‘international standards'”. I am guessing this is clearly a shot at the U.S. in areas as varied as trade laws, IP, and human rights.
5 – Philippines and UNCLOS arbitral tribunal: Don’t You Dare Ruin International Law
Not surprisingly, the statement takes aim at international and national courts. It declares:
National and international judicial institutions should avoid overstepping their authority in interpreting and applying international law. Still less should they encroach on the rights and interests of other countries under the pretext of “the rule of law” in total disregard of objectivity and fairness. — Wang Yi in “Full Text of Chinese FM’s Signed Article on International Rule of Law“, People’s Daily Online, 24.10.2014.
I think this is clearly a warning signal to the UNCLOS arbitral tribunal formed to resolve the Philippines claim against China. This is another sign there will be no backing down on this arbitration. China is going to continue to loudly proclaim its commitment to rule of law, and continue to reject and maybe even denigrate the legitimacy of this arbitration.
6 – International Rule OF Law, not Rule BY Law
Finally, I’ll note that the statement’s use of the phrase “international rule of law” might help clarify a debate among China-watchers as to what China means by the phrase “rule of law.” As Josh Chin has usefully explained in the Wall Street Journal here, the Chinese phrase “法治” (fazhi) is often translated as “rule of law” but could also be translated as “rule by law”. Indeed, there is a traditional Chinese “Legalist” tradition that thinks of law as an instrument for ruling society, but less so as a constraint on lawmakers and government. Most China-watchers would probably say that “rule by law” is a more accurate translation of what the Chinese Communist Party means when they call for the promotion of the “法治” (fazhi) in domestic reforms, since most expect the Party to remain effectively above the law for most key matters in the future, but for law to be used as a mechanism of social and political control of everyone else.
No matter what the Party means domestically by “法治” (fazhi), it is clear that its use internationally fits within the Western conception of law as an autonomous force constraining state power and preserving state equality.
In promoting international rule of law, the most important thing is to use universally applicable rules in international relations to distinguish right and wrong, end disputes and seek a win-win solution through coordination. This is vital to international rule of law. The formulation, interpretation and application of international law should all be conducive to this goal. Under no circumstances should we inflate the arrogance of hegemonism and power politics, still less use international rule of law to instigate disagreement and friction,for it will only lead us to a wrong direction. — Wang Yi in “Full Text of Chinese FM’s Signed Article on International Rule of Law“, People’s Daily Online, 24.10.2014.
Indeed, in its call for universally applicable principles, democratic lawmaking, and the use of law to restrain strong states from taking advantage of the weak, the Chinese Communist Party is invoking a version of rule of law that many Westerners would be familiar with. It will be interesting to see if this conception bleeds over into the Party’s push for domestic rule of/by law reform.